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Judgment
N. Paul Vasanthakumar, J.—In this writ petition, petitioner seeks to quash the order of dismissal passed by the second respondent dated
6.8.2003, confirmed in appeal by the first respondent by order dated 3.11.2003 and quash the same and direct the respondents to reinstate the p
etitioner in service with all benefits.
The petitioner was working as Woman Constable Grade-I in All Women Police Station, Kuzhithurai, Kanyakumari District. A charge memo
was issued under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, in P.R.N o.13/2003 by the
second respondent herein. The Deputy Superintendent of Police, Kanyakumari, was nominated as Enquiry Officer, who conducted oral enquiry
and by his report dated 16.6.2003 held that the charges levelled against the petitioner were not proved. The second respondent, who is the
Disciplinary Authority, disagreed with the findings of the Enquiry Officer and drawn a dissenting note on 14.7.2003, for which the petitioner
submitted a reply on 25.7.2003. Not satisfied with the said reply, the second respondent on 6.8.2003 held that the charges are proved and
consequently the petitioner was imposed with the punishment of dismissal from service. Petitioner preferred an appeal before the first respondent
and the same was rejected on 3.11.2003.
In the counter affidavit filed by the respondents it is stated that since the charges are serious in nature and statements were recorded during
preliminary enquiry implicating the petitioner in the charges, the second respondent differed with the findings of the Enquiry Officer and sent a
dissenting note and after getting remarks from the petitioner, punishment was imposed. It is also stated that unlike in criminal cases, preponderance
of evidence is sufficient to prove the charges against the del inquent in the departmental enquiry.
Heard the learned counsel for the petitioner as well as the learned Government Advocate appearing for the respondents.
The learned counsel appearing for the petitioner argued that the second respondent ought not to have held that the charges against the petitioner
are proved based on Exs.P-1 to P-7, which are statements recorded during the preliminary enquiry as the same are without any corroboration,
and relying on Exs.P-13 and P-14, which are drawn based on Exs.P-1 to P-7. The learned counsel also read out the dissenting note of the second
respondent wherein the differing view was taken based on the statement giv en in Exs.P-1 to P-7 during the preliminary enquiry. According to the
second respondent, the preliminary enquiry was conducted on 14.1.20 03. PW-7 gave statement in Ex.P-7 that Rs. 300/- each collected from 94
recruits and an amount of Rs. 28,200/- was ha nded over to the petitioner in the presence of others. The second respondent therefore relied on the
said statement obtained during the preliminary enquiry and the said statements were not corroborated in the regular enquiry after framing of
charges. I n paragraph 8 of the dissenting note, the second respondent states as follows:
In view of the foregoing conclusions I have given much weight to the statements of Pws.1 to 7, PW.10 given before the preliminary enquiry officer
and the report of preliminary enquiry officer i.e. PW.11 and the exhibits filed by them and Ex.P1 to P7, E x.P13 and P14 and the charge against
the delinquent is ""PROVED"" under preponderance of probability as per the various rulings made in various Judgements quoted above.
Learned counsel for the petitioner also cited a decision of the Honourable Supreme Court reported in Union of India (UOI) and Others Vs. Mohd.
Ibrahim, in support of his contentions.
I have considered the submissions of the learned counsel appearing for the petitioner as well as the learned Government Advocate.
In the decision reported in Union of India (UOI) and Others Vs. Mohd. Ibrahim, the Honourable Supreme Court in the facts and circumstances
of the case before it held that the order of dismissal was vitiated as the findings have been based on consider ation of statement of the persons
examined during the preliminary enquiry and for the said fact the Tribunal set aside the order of dismissal which was upheld by the High Court and
there is no error in the said order setting aside the dismissal order.
A Division Bench of this Court by Judgment dated 22.2.2005 in W.P. Nos. 29862 & 32581 of 2002 (The Deputy Inspector General of Police,
Villupuram and Ors. v. V.Vanniaperumal and Ors.) upheld the order of the Tribunal which set aside the order of re moval from service.
Paragraphs 6 and 8 of the judgment can be usefully referred to, which reads thus,
We have carefully considered the relevant materials and the rival contentions. We have already referred to the charges levelled against the
applicants. It is also relevant to note that apart from the applicants two more officers have also been imp licated along with them. They are one
Sattanathan, Sub-Inspector of Police and Antony, Inspector of Police. It is brought to our notice that Sattanathan is no more and so far as the
other officer Antony is concerned lesser punishment has been imposed. Now we are concerned with the charges levelled against both the
applicants. In the light of the conclusion arrived at by the Tribunal, we perused the finding of the Enquiry Officer. It is not in dispute that all the
prosecution witnesses except PW.3, w ho 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 t he above aspect curiously submitted a report holding that all the three charges levelled against them are proved based on the preliminary
enquiry.
...
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 prelim inary 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. Further, we find no sub stance or material to arrive at a conclusion that ""since all the three counts were
proved by the prosecution beyond reasonable doubts, convincingly, I agree with the findings of the Enquiry Officer, ..."". We are satisfied that there
is no material to a arrive at such a conclusion by the Deputy Inspector General of Police, while passing an order removing the applicants from
service. All these aspects have been considered by the Tribunal in a proper manner and there is no acceptable material or evidence to take
different view as that of the Tribunal. We find no merits in both the writ petitions. Accordingly, they are dismissed. No costs. Consequently, the
connected miscellaneous petitions are dismissed.
The said conclusion was arrived at by the Division Bench based on the decision of the Honourable Supreme Court reported in 1997 I SCC 299
(Narayana Dattatraya Ramteerthakhar v. State of Maharashtra).
The above referred decision of the Division Bench was followed by me in the order dated 15.2.2006 in W.P. No. 27019 of 2005 (B.Bals
Murugan v. The Inspector General of Police, Madurai-2 and Two others), wherein the order of punishment was set aside.
Applying the above principles laid down by the Honourable Supreme Court, Division Bench of this Court and also the earlier decision of mine,
as referred above, I am of the opinion that the differing view taken by the disciplinary authority/second re spondent herein against the Enquiry
Officer''s report is unsustainable in view of the fact that the said view was taken solely based on the statements recorded during the preliminary
enquiry. Consequently, the punishment imposed on the basis of the disse nting view is unsustainable and the order of the appellate authority
confirming the order of the dismissal is also unsustainable.
In the result, the respondents are directed to reinstate the petitioner into the service with all service benefits, other than back wages, within a
period of four weeks from the date of receipt of copy of this order. Since the petitioner was out o f service, she is not entitled to get backwages on
the principle of ''No work, No pay''.
The writ petition is allowed to the above extent. No costs.