S.Simachalam vs Union Of India And Others

Subrata Talukdar, J

Under challenge in this writ petition is the order of the learned Central Administrative Tribunal, Kolkata Bench at Circuit at Port Blair ( for short referred to only as the learned Tribunal) in OA 351/01377/2018 passed on the 18th of December, 2018.

By the said impugned order the learned Tribunal rejected the prayer of the petitioner for re-appreciation of the final order of termination in the Disciplinary Proceeding (for short DP). The prayer was made on the ground that after closure of the DP in 2012, three criminal trials (for short CTs) on the self-same charges had resulted in the acquittals of the petitioner.

Ms.Nag, learned counsel appearing for the petitioner/the delinquent in the DP, submits that the learned Tribunal omitted to notice in its order dated the 18th of December, 2012 (supra) an important issue raised by the petitioner. Such issue has been, inter alia, pleaded at paragraphs (j) and (k) of the OA filed before the learned Tribunal.

According to the petitioner, the content and scope of pleadings at paragraphs (j) and (k) is as follows:

"j) That soon thereafter, the applicant submitted an application before the Director General of Police on 27.12.2017 seeking review of the order dated

07.07.2009 passed by him on the grounds narrated in the said application. On 15.01.2018, without hearing the applicant the Director General of Police rejected the same. There is no reason assigned to the said order.

Photostat copy of the said application dated 27.12.2017 submitted by the applicant before the Director General of Police and the Memorandum dated 15.01.2018 are annexed herewith and marked as ANNEXURE"A-8"

k) That being aggrieved the applicant submitted a representation on 25.01.2018 before the Lieutenant Governor. The said representation is still pending.

Photostat copy of the said representation dated 25.01.2018 is annexed herewith and marked as ANNEXURE "A-9"."

It is therefore argued that after closure of the DP and subsequent acquittal in the CTs, the petitioner immediately had access to a right of Review under clause 9.26 of the Andaman and Nicobar Police Manual, 1963 (for short the 1963 Manual).

The Reviewing Authority (RA )was duty bound to apply its mind to the new circumstance thrown up by the acquittals of the petitioner in the three CTs and test the order of termination of service in the DP in the context of the acquittals. It is trite that the acquittals have resulted in throwing up sufficient materials and reason for the RA to apply the tested principle that when CTs are on self-same charges and the charges are grave, the favourable outcome in the CTs must inspire re-appreciation of the punishment in the DP.

Next, pointing out to the Memorandum dated the 15th of January, 2018 signed by the Deputy Superintendent of Police (for short DySP) of the office of the Director General of Police (DGP) and bearing the imprimatur of the approval of the Competent Authority, Ms.Nag submits that the reasoning in the Memo is utterly cryptic. The RA has merely purported to say that since the DP and the CTs stand on different footings and the DP stood long completed, there was no reason to revisit the DP at all. Accordingly, the prayer of the petitioner for reinstatement in service was rejected.

Ms.Nag submits that the learned Tribunal by its order dated the 18th of December, 2018 forgot to answer the issue connected to the failure to exercise jurisdiction by the RA. The learned Tribunal erred in law by only confining itself to the rejection of the prayer of the petitioner as if it was merely on the ground of seeking re-appreciation of evidence by a Court/Tribunal. The petitioner, learned counsel asserts, ought not to have been allowed to suffer a loss of forum.

Before returning to the further submissions made by learned counsel for the petitioner, it would be relevant at this juncture to consider the stand taken by Mr.S.K.Mandal, learned senior counsel appearing for the Administration/the Police Authority/the respondents.

Mr.Mandal, points out that the closure of the DP attained finality way back in 2012 with the learned Tribunal dismissing OA 190/AN/2009 (for short OA 190). It is not in dispute that the final order of the learned Tribunal in OA 190 has not been challenged by the petitioner and therefore along with the said final order in OA 190 the DP too has attained finality.

Mr.Mandal submits that the petitioner cannot now pluck out at his convenience a stage in the DP, that is the stage of the RA, while at the same time leaving the conclusion in OA 190 untouched. Assuming that the RA would have held in favour of the petitioner, such finding would be impossible to implement in the face of the finality attached to the adjudication in OA 190 upholding the DP. In the hierarchical scheme the learned Tribunal sits in judgment over the orders passed by any authority at any stage in the DP and by way of the present WPCT (163 of 2019) it would be judicially impermissible to collaterally put the final order in OA 190 under scrutiny of an authority, more so when the petitioner has not whispered a word in the WPCT connected to OA 190.

Mr.Mandal further submits relying on the authority of (2013) 7 SCC page 685, (2016) 1 SCC page 617 and an unreported judgment of the Circuit Bench of the High Court at Port Blair in WPCT No.243 of 2018, that for the petitioner to claim acquittal as ground of Review, such acquittal must be honourable. It is pointed out that the departmental charge-sheet contained three Articles of Charges ( for short AoC). AoC-1 was in connection with the petitioner demanding money from the complainant to provide him a job of a Cook in the Police Department. Corresponding to AoC 1 of the departmental charge-sheet, a G.R. Case No.1722 of 2007/TR 1569 of 2007 under Sections 419/420 of the Indian Penal Code (henceforth referred to as CTI ) was concluded against the petitioner before the learned Second Judicial Magistrate at Port Blair.

Second, Mr.Mandal submits, connected to AoC 2 of the departmental charge-sheet, Sessions Trial No.59 of 2010 arising out of GR Case No.1723 of 2007 (TR 131 of 2007) i.e. CT II, was concluded before the learned Additional Sessions Judge at Port Blair.

Finally, with respect to AoC 3 connected to theft of a mobile phone, GR Case No.1724 of 2006 arising out of TR 3040 of 2007, i.e. CT III was commenced and concluded before the learned Chief Judicial Magistrate, South Andaman at Port Blair.

Learned senior counsel for the respondents submits that indisputably the findings in CT I and CT III were not honourable acquittals. From the judgment of the competent criminal courts it would be evident that evidence was wanting since witnesses had turned hostile. Referring to the principles enunciated in (2013) 7 SCC page 685 and (2016) 1 SCC page 617 (supra), learned State counsel submits that since a full-fledged trial could not be carried out on a proper recording of all evidence and the petitioner stood acquitted on such score, the acquittals were not honourable.

Arguably, with regard to the Sessions CT II, there is a fuller discussion by the learned Magistrate on the evidence. However, the tenor of the discussions does suggest that incomplete evidence was tendered before the learned Sessions Court.

Accordingly, Mr.Mandal submits, that even if the claim of the petitioner is arguably accepted to be correct on the point that new materials requiring reconsideration by the RA have surfaced at the end of the CTs, having regard to the legal position connected to honourable acquittals as discussed above, the Memo impugned dated the 15th of January, 2018 of the RA cannot be faulted, since the legal perspective is clear with regard to the present facts that the DP and the CTs stood on different footings. According to Mr. Mandal, The RA is not a judicial officer and as such it is not expected of him to pass order like a judicial officer.

Ms.Nag tries to clarify the position on honourable acquittals in defence of the case of the petitioner by relying on the authorities reported in AIR 2016 SC page 3528, AIR 2018 SC page 376 and (2015) 2 SCC page 365. It is submitted, inter alia, that if the DP and CTs are based on the same facts, the acquittals by the learned Criminal Courts should indisputably be taken into consideration by the next forum, i.e. the RA. It is further submitted that lapses on the part of the prosecution in the CT, cannot be blamed on the accused/the petitioner. It is also the case of the petitioner that he was not acquitted only because the witnesses turned hostile but for the prosecution being unable to prove the case. It is the duty of the Court or the Tribunal to then determine the need of the petitioner to be restored a forum, in this case in the nature of a RA.

Ms.Nag argues that correspondingly it was the duty of the RA to apply its mind as to whether the acquittals in the CTs require the final order of termination in the DP to be revisited. The RA had failed to discharge jurisdiction bestowed upon it vide Clause 9.26 of the Manual by simply issuing the impugned cryptic order. The moment the petitioner filed his representation before the RA requesting to take notice of the acquittals in the CTs, the RA was bound to exercise jurisdiction as per law to place the acquittals and the DP side by side and revisit the issue upon a detailed application of mind after hearing the petitioner.

By such cryptic order the petitioner has not only suffered a loss of forum but further the learned Tribunal vide its order dated the 18th of December, 2018 has ignored the loss. The petitioner now reclaims the forum by way of the present WPCT.

A final argument is adopted by Ms.Nag that the Appellate Authority of the petitioner being the Inspector General of Police (IGP), any officer below the rank of IGP, such as DySP, who has signed the Memo impugned dated the 15th of January, 2018 cannot be said to have acted in exercise of jurisdiction under Clause 9.26 of the Manual (supra). Accordingly, the prayer is made by the petitioner that the Memo impugned dated the 15th of January, 2018 be set aside and the RA be directed to revisit the DP in accordance with law.

Having heard the parties and considering the materials placed, this Court addresses the issues raised by the petitioner one by one.

(A) First, that under Clause 9.26 of the Manual either the Chief Commissioner or the IGP was required to act as the RA to scrutinise the orders passed by their subordinate officers. In this case the IGP was the Appellate Authority of the petitioner in the DP and therefore, obviously, the IGP could not again act as the RA.

(A1) The Memo impugned dated the 15th of January, 2018 has been issued with the approval of the Competent Authority. The Memo emanates from the office of the DGP, who is the highest Police Officer by designation in this Union Territory. Assuming that the argument of the petitioner is accepted that after the IGP acting as the Appellate Authority, it should have been the Chief Commissioner, viz. the Lieutenant Governor who should have acted as the RA, the argument is fallacious to the extent that the Lieutenant Governor/the Chief Commissioner, being the Apex in the Union Territory Administration, can also be understood to exercise his Home Department functions through office of the DGP.

(A2) Therefore, to accept the proposition that the Lieutenant Governor/the Chief Commissioner and the office of the DGP are two distinct authorities qua the review claimed by the petitioner is equally fallacious, since the Memo dated the 15th of January, 2018 embodies in its essence the approval of the Competent Authority Home Department Authority acting over and above the IGP, since ordinary administrative arrangement treats the office of the DGP to be an arm of the Chief Commissioner/the Lieutenant Governor's office in exercise of its Home Department functions being the controlling and competent authority qua the service of the petitioner. It cannot be therefore argued that the Memo impugned dated the 15th of January, 2018 stands outside the purview of Clause 9.26.

(B) Second, it would be evident from the judgment in CT I and the judgment in CT III that the tests of honourable acquittals could not be fulfilled. By way of example extracts of the judgment in CT I (corresponding to AoC 1) are reproduced below:-

" From the evidence of the defacto complainant it is seen that he was the person who have lodged a complaint before the police station on the basis of which the investigation was initiated and charge sheet was filed against this accused person. During the course of the trial the defacto complainant appeared as prosecution witness and deposed but could not substantiate the date, time and manner of the alleged offence. He could not identify the accused person as the offender. More over the nature of the evidences clearly depicts his intention not to proceed with the trial. Be that as it may. The other PWs could not corroborated the alleged offences nor could they identify the accused person.

None of the prosecution witnesses have been able to prove the allegations levelled against this accused person during the trial of the proceeding and thus there is no other alternative but to acquit the accused person from the charges.

Hence, it is

Ordered,

that the accused is found not guilty of the alleged offence u/sec.419/420 of IPC and accordingly the accused is acquitted u/sec.255(1) of Cr.P.C.

...."

(B1) Now, parts of the judgment in CT III (corresponding to AoC 3) are also reproduced for the benefit of the present discussion.

" PW-5 is Basant Ram. PW-5 was declared hostile by the prosecution during his oral evidence. On perusal of oral evidence I find that, he did not support the case of prosecution.

PW-6 is Shukla Singh. PW-6 investigated the present case partly.

I have carefully perused the prosecution witnesses and other materials on record. At the very outset it has come to my notice that, the incident occurred on 13.05.2007 and Fir was lodged on 23.05.2007. There is no explanation of delay in lodging FIR either in the FIR or in the oral evidence of prosecution witnesses. Hon'ble Apex Court has time and again in different cases expressed regarding prompt lodging of FIR. In the present case there is no eye witness as to the commission of theft by the accused. Simachalam in the present case no independent witness has supported the case of prosecution.

PW-4 is a seizure list witness and it is stated by PW-4 in his oral evidence that he was asked to put his signature on a written paper and as such he put his signature.

PW-5, another seizure witness was declared hostile by the prosecution and the oral evidence of PW-5 does not support the case of prosecution.

Taking an over all view of my above discussion I am of the opinion that there is no room for doubt about the truthfulness of the prosecution case. There is also no acceptable and reliable evidence on record to convict the accused in this case. Prosecution has failed to prove the charge against the accused beyond reasonable shadow of doubt. And as such the accused is entitled to get an order of acquittal in view of the loop holes of the prosecution case.

..."

(B2) With regard to CT II the Sessions Trial (corresponding to AoC 2), this Court finds the following conclusion:

A cumulative consideration of the oral evidence on record goes to show that the evidence given by the prosecution witnesses is found contradictory and there is no corroboration. The eye witnesses (PW-1 to PW-16) also have not stated anything against the accused person regarding his involvement in this case. The case of the prosecution side is based on circumstantial evidence. On close examination of the evidence on record this court finds that the prosecution side has failed to prove the link of the circumstantial evidence. Similarly the prosecution side has also not proved the fact that the accused person has kidnapped the victim girl with intention of marriage and for entering into the sexual intercourse with her. Similarly the prosecution side has also failed to prove that the accused person robbed the mobile phone of the victim girl. It is also not proved by the prosecution side that the victim girl was molested by the accused person. The essential ingredients of the offence under section 366/392/354 of IPC are missing in the evidence on record.

Recapitulating the above note discussions and evidence on record this court is of the view that the prosecution side has failed to prove the charge of kidnapping, robbery and outraging modesty which is framed u/s 366/392/354 of IPC against the accused person beyond all reasonable doubt and so this court has no other way but to pass an order of acquittal in favour of the accused person Seemachalam.

...."

(B3) Arguably, accepting the proposition that CT 2 the Sessions Trial was an honourable acquittal, by no stretch of imagination CT I and CT III can be said to be honourable acquittals. Since it is the case of the petitioner that both the DP and the CTs are based on similar and grave charges, the failure on the part of the petitioner to be honourably acquitted qua CT I and CT III must inevitably lead to the conclusion that the final order in the DP connected to AoC 1 and AoC 3 require not to be revisited. It is beyond dispute that the petitioner, being a member of discipline force, must be said to have lost confidence in his employer and therefore, not fit to be retained in service once found to have been guilty of misconduct connected to AoC I and AoC III. The sole fact that the petitioner has built up an arguable position connected to CT II (corresponding AoC 2), compels this Court, at this juncture, reproduce relevant extracts from the judgment in CT II/the Sessions Trial.

" PW-3 T.Vasudev Rao in his evidence has stated that the incident took place seven years ago and this evidence has stated that he cannot remember anything about this case. This witness has been declared hostile by considering the prayer of the prosecution side and prosecution side is given opportunity to cross-examine this witness but at the time of cross-examination this witness has not stated anything in favour of the prosecution case.

PW.4 in her evidence has practically stated nothing. From the evidence given by these two witnesses (PW-3 and PW.4) this court is not getting any material in support of the prosecution case.

.... .... ...

On close scrutiny of the evidence given by WP-13 this court finds that this witness has practically given contradictory picture as because at one hand he has stated that the victim girl was recovered from Rajiv Nagar but on the other hand he has also stated that the victim girl was recovered from Rangat. This matter has not supported the case of the prosecution side. Moreover, this witness has not stated anything in his evidence involving the accused person in this case. Thus, it is crystal clear that the evidence given by PW-13 has not at all supported the case of the prosecution side.

... .. ...

On close examination of the evidence given by PW-16 this court finds that this witness has not stated anything in his evidence as to how the victim girl has been recovered twice i.e. firstly from Rajiv Nagar and thereafter from Rangat in connection with the incident. Thus, it is crystal clear that regarding recovery of victim girl the evidence given by prosecution witness is full of doubt and suspicion. Moreover, this prosecution witness also remained silent in the manner of proving the ownership of the seized motorcycle and the seized mobile phones. On close compare of the evidence given by PW-16 who is the IO of this case with the evidence given by the other witnesses, this court noticed that there is a gulf of difference in between the statement on evidence given by these witnesses and there is also huge contradiction in the statement on evidence given by the witnesses in respect of the incident happened.

..."

(B4) From a consideration of the above extracts the position claimed by the petitioner of honourable acquittal in CT II (corresponding AoC 2) becomes ambivalent. The positive assertion that CT II resulted in an honourable acquittal as a consequence becomes clouded. The petitioner is accordingly not entitled in the view of this Court, to claim as a matter of right revisit of the DP by the RA.

(C) Finally, this Court finds worth in the submission of Mr.Mandal, for the reasons already discussed hereinabove, that the finality of the adjudication in OA 190/AN/2009 does not create room for the RA to reopen the issue. Since this Court has found and held, as discussed above, that there is no infirmity in the exercise of its jurisdiction on its own motion or otherwise (per Clause 9.26) does not beg an answer.

The issue raised by the petitioner that the RA failed to apply its mind in the exercise of its jurisdiction vide Clause 9.26 is distinct from the issue as to whether the RA ought to have exercised jurisdiction on its own motion or otherwise.

Since the issue raised of non-application of mind by the RA and against the petitioner, the presumption also is raised in favour of the RA having taken up its jurisdiction correctly.

The reliance by the petitioner on the authority of 1984 CriLJ 301, which this Court also finds to be not apropo to the present facts, merits no further discussion.

Therefore, RA has correctly decided and conveyed to the petitioner that the DP stood long closed.

No intervention is accordingly called for and, no intervention is made in the order of the learned Tribunal dated the 18th of December, 2018 in OA 351/01377/2018.

WPCT No.153 of 2019 stands thus dismissed.

I agree.