AI Structured Summary
Not yet generated for this judgment
Judgment
A. Kulasekaran, J.—The prayer in WP No. 12839 of 2005 is for a Writ of Certiorari to call for the records of the third respondent passed
in proceedings PR 183 of 1991 of Salem City / PR 132/04 of Madurai City under Rule 3 (b) of TNPSS (DA&A) Rules dated 29.04.2004 and
the connected appellate Order of the second respondent passed in proceedings Rc. No. 693/211006 /AP 2 (2)/2004 dated 30.11.2004 and the
connected Review Order of the first respondent passed in proceedings Rc.No. 898/267196/AP 2(2)/2001 dated 16.02.2005 and quash the
same.
The prayer in WP No. 12967 of 2005 is for a Writ of Mandamus directing the respondents to consider the name of the petitioner for inclusion
in the regular panel of Inspectors of Police fit for appointment by recruitment by transfer to the post of Deputy Superintendent of Police (category
1)/Assistant Commissioner of Police from the post of Inspector of Police, for the year 2000-2001 according to the feeder category seniority of the
petitioner in the cadre of Inspector of Police with effect from the date on which his junior was promoted as Deputy Superintendent of Police
(category 1)/Assistant Commissioner of Police with all consequential benefits.
WP No. 12839 of 2005 is filed challenging the order dated 29.04.2004 passed by the Commissioner of Police, Madurai City Police/3rd
respondent, imposing the punishment of reduction in time scale of pay for one stage for one year with cumulative effect against the petitioner, which
was confirmed by the Additional Director General of Police/second respondent by order dated 30.11.2004 and the same was confirmed by the
Director General of Police/first respondent by order dated 16.02.2005.
WP No. 12967 of 2005 was filed seeking for a Writ of Mandamus directing the respondents therein to consider the name of the petitioner for
inclusion in the regular panel of Inspectors of Police fit for appointment by recruitment by transfer to the post of Deputy Superintendent of
Police/Assistant Commissioner of Police from the post of Inspector of Police, for the year 2000-2001 with effect from the date on which his junior
was promoted as Deputy Superintendent of Police/Assistant Commissioner of Police with all consequential benefits since the petitioner''s name
was not considered on the ground that the disciplinary proceedings against the petitioner, which is the subject matter of WP No. 12839 of 2005,
was pending during the relevant period for consideration, hence, both the writ petitions are disposed of by this common order.
Mr. Hariparanthaman, learned Counsel appearing for the petitioner submits as follows:
When the petitioner was working as Inspector of Police at Bagalour Police Station, Dharmapuri District, he was issued with charge memo under
Rule 3 (b) of Tamil Nadu Police Subordinate Service (Disciplinary and Appeal) Rules by the Inspector General/Commissioner of Police, Salem
City and Salem Range in his proceedings dated 11.07.2000. The charges against the petitioner are thus:
i) Grave misconduct and unbecoming of a police officer in having demanded Rs.12,000/- initially and then reduced it to Rs.6,000/- on 18.09.1988
at 18.00 hours through H.C. 1692 Rathinachalam from one Tr. Rajappan, son of Chinnagounder, Vairapalayam Village, Therkuthottam keeping
the said Rajappan and one Chinnathambi who accompanied the former to Nalur P.C. under duress for having failed to intimate the police about the
death of manickam, son of Rajappan in a road accident on the night of 01.09.1988 near M.K. Pallam of Namakkal-Velur Road.
ii) Grave misconduct and misuse of official position by having demanded a bribe of Rs.100.00 on 09.09.1988 from one Duraisamy Gounder to
conduct inquest over the body of Raman concerned in Nallur P.S. Cr.No. 172/88 u/s 174 Cr.P.C. without delay and received the bribe amount
through H.C. 1692 Rathinachalam.
iii) Grave misconduct and misuse of official position by having directed one Duraisamy Gounder on 09.09.1988 to pay the taxi hire charges of
Rs.100/- for the taxi in which he and H.C. 1692 Rathinachalam proceeded to the spot for holding the inquest.
The petitioner has submitted his reply dated 27.09.2002 and further explanation on 28.11.2002. The Superintendent of Police, Salem was
appointed as enquiry officer. The enquiry officer found that all the three charges against the petitioner were not proved. The Deputy Inspector
General of Police, Salem Range, who is the Disciplinary authority agreed with the findings of the enquiry officer and proposed to drop further
action. The said conclusion arrived at by the disciplinary authority was also confirmed by the Director General of Police/appellate authority and
proposal was sent to the Government for concurrence of the Vigilance Commissioner to drop further action. The Government accepted the
findings of the enquiry officer with regard to charge Nos. 2 and 3 but dissented with charge No. 1, hence, it directed the Deputy Inspector General
of Police, Salem range to issue second show cause notice to the petitioner and call for explanation from him. After the said formalities are over, the
Deputy Inspector General of Police, Salem range reiterated his earlier stand and proposed to drop further action against the petitioner and
requested to obtain clearance of the Vigilance Officer, Chennai - 600 009 and the same was accepted by the Director General of Police and
proposal was again sent to the Government for concurrence of the Vigilance Commissioner to drop further action. The Government not accepted
the proposal and remanded the matter again as preponderance of probability is sufficient in respect of charge No. 1 and directed the
Commissioner of Police, Madurai City Police, where the petitioner was transferred, to obtain representation from the petitioner and pass orders.
The Commissioner of Police, Madurai City Police after completing the formalities found that charge No. 1 against the petitioner was proved and
the same was also confirmed by the Additional Director General of Police, Mylapore, Chennai - 600 004. Thereafter, the petitioner has filed a
review before the Director General of Police, Chennai - 600 004 which was also rejected. It is further submitted by the learned Counsel for the
petitioner that in respect of charge No. 1 (only charge) the prosecution has examined Pws 1 to 4 before the enquiry officer. PW1 in his evidence
has stated that his son Manickam died in a road accident on 01.09.1988 which was not informed to the police, on 10.09.1988, the Head
Constable Rathinachalam demanded bribe of Rs. 12,000/- for not prosecuting him and others, later, reduced it to Rs.6,000/-. It is further deposed
by him that the said Rathinachalam alone demanded the said amount but not the petitioner herein. PW2 in his evidence deposed that he was
informed by PW1 that amount was demanded in the police station but he is not aware of the name of the person who demanded money. PW3 in
his evidence stated that the amount was demanded by the said Head Constable but no amount was paid. In a specific question, PW3 replied that
the petitioner not at all demanded any amount. PW4 in his evidence stated that the said Head Constable alone demanded money but he was not
aware anything about the petitioner. Considering the evidence of Pws 1 to 4, the enquiry officer found that the said charge against the petitioner
was not proved. The disciplinary authority namely Deputy Inspector General of Police, Salem, as well as the appellate authority namely Director
General of Police agreed with the findings of the enquiry officer and sent their proposal to the Government, but the Government without assigning
any reasons, much less valid reasons, decided that there was possibility to hold that charge No. 1 against the petitioner is proved and remanded
the matter to the Deputy Inspector General of Police, Salem for passing orders afresh, who reiterated his earlier stand and sent a proposal to drop
further action, which was also accepted by the Director General of Police. When the proposal was again sent to the Government for the
concurrence of Vigilance Commissioner to drop further action, the Government, erroneously not accepted the same and again remanded the
matter to the Commissioner of Police, Madurai City Police on the ground that preponderance of probability is sufficient. The Commissioner of
Police, Madurai City Police, without properly considering the report of the enquiry officer as well as the oral and documentary evidence let in
before him erroneously followed the preliminary enquiry report and imposed the punishment. The preliminary enquiry report cannot be relied on
since the statements in the preliminary enquiry report were not made in the presence of the petitioner. In support of this contention, the learned
Counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in Central Bank of India Ltd. Vs. Prakash Chand Jain,
wherein it was held in Para-8 thus:
...It is in this connection that importance attaches to the views expressed by this Court in the cases cited above where it was pointed out that a
finding of a domestic tribunal may be perverse if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that
domestic tribunals, like an Enquiry Officer, are not bound by the technical rules about evidence contained in the Indian Evidence Act; but it has
nowhere been laid down that even substantive rules, which would form part of principles of natural justice, also can be ignored by the domestic
tribunals. 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....
Citing the above decision, the learned Counsel for the petitioner submits that the finding of the Commissioner of Police, Madurai City Police is
erroneous, which was confirmed by the appellate authority as well as reviewing authority. It is further argued by the learned Counsel for the
petitioner that in view of the pendency of the disciplinary proceedings for a long period, the petitioner''s name was not considered for inclusion in
the regular panel of inspector of police fit for appointment to the post of Deputy Superintendent of Police for the year 2000-2001 and prayed this
Court to allow the writ petitions.
Mr. Dhandapani, learned Additional Government Pleader for the respondents submitted that the preliminary enquiry report discloses that the
said charge No. 1 against the petitioner is proved; that strict application of Indian Evidence Act is not necessary in the disciplinary proceedings and
preponderance of probability is sufficient; that the disciplinary authority and the other two authorities have rightly imposed the punishment on the
petitioner; that in so far as the writ petition No. 12906 of 2005 is concerned, the learned Additional Government Pleader submitted that the relief
of Mandamus sought for by the petitioner cannot be granted and prayed for dismissal of the writ petitions.
This Court carefully considered the argument of the counsel on both sides and perused the material records placed. One Manickam, son of
PW1 died on 01.09.1988 in a road accident near M.K. Pallam of Namakkal-Velur Road. The said accident was not informed to the police. It is
stated that on preliminary enquiry, it was found that the petitioner committed certain omission and commission while dealing with the case against
PW1 and his associates, who allegedly suppressed the accident and three charges came to be issued against the petitioner, which details are
mentioned supra. The charge Nos. 2 and 3 are not relevant in this case since the respondents have dealt with only the first charge. The first charge
is that the petitioner has received a sum of Rs.6,000/- through Head Constable Rathinachalam, which amounts to misconduct.
The enquiry officer has submitted his report on 20.01.2001 holding that all the charges, including the charge, which is relevant for this case, are
not proved. It is to be remembered that originally, the disciplinary authority as well as the appellate authority agreed with the findings of the enquiry
officer, but the Government, for the first time, remanded the matter to the disciplinary authority and the disciplinary authority reiterated his earlier
stand which was also confirmed by the appellate authority. For the second time, the Government remanded the matter to the Commissioner of
Police, Madurai City Police, who, after completion of formalities found that the said charge against the petitioner is proved and imposed the
punishment.
Both sides admitted that in respect of charge No. 1, Pws 1 to 4 were examined and their evidence is clearly extracted in the enquiry report,
which is also not in dispute. PW1, father of Manickam, who died in a road accident, deposed that one Rathinachalam, Head Constable demanded
him to pay Rs.12,000/- as bribe for not prosecuting him and his associates, later, by bargain, he agreed for Rs.6,000/-. In his entire evidence,
PW1 has attributed the charges only against the said Rathinachalam but not against the petitioner. PW2 deposed that he has no personal
knowledge about the demand made by any body but he was informed by PW1. In a question, he replied that he was not aware who demanded
money from PW1. PW3 in his evidence stated that the said Head Constable alone demanded money but no amount was paid. In a question, he
answered that the petitioner not demanded any money. PW4 deposed that Head Constable alone demanded money and he was not aware
anything about the petitioner.
It is seen from the above evidence of Pws 1 to 4 that they have not at all deposed against the petitioner either about the demand or receipt of
money and in the absence of such evidence that the petitioner demanded or received money, it is incorrect to hold that the charge against the
petitioner is proved.
In this context, it is relevant to look into the decision of the Honourable Supreme Court reported in Kuldeep Singh Vs. The Commissioner of
Police and Others, wherein in Para Nos. 33 and 34, it was held thus:
In State of Mysore v. Shivabasappa Shivappa Makapur the witness was not examined in the presence of the delinquent so far as his
examination-in-chief was concerned and it was his previous statement recorded at an earlier stage which was brought on record. That statement
was put to the witness who acknowledged having made that statement. The witness was thereafter offered for cross-examination and it was held
that although the statement (examination-in-chief) was not recorded in the presence of the delinquent, since the witness had been offered for cross-
examination after he acknowledged having made the previous statement, the rules of natural justice were sufficiently complied with.
In Kesoram Cotton Mills Ltd. v. Gangadhar and State of U.P. v. Om Prakash Gupta the above principles were reiterated and it was laid
down that if a previous statement of the witness was intended to be brought on record, it could be done provided the witness was offered for
cross-examination by the delinquent.
In the above decision of the Honourable Supreme Court, it was held that any evidence recorded behind the back and adverse to the interest of
the delinquent cannot be relied on as it is, if the delinquent is given opportunity in the enquiry to cross-examine them and the rules of natural justice
are sufficiently complied with. In this case, the witnesses examined in the preliminary enquiry were produced before the enquiry officer, they were
examined, in that examination they have not at all spoken about the petitioner pertaining to the charge. On the contrary, all the four witnesses
deposed only against the Head Constable. In the absence of any evidence against the petitioner for alleged demand and receipt of money, it is
unjustifiable to hold that the charge against the petitioner is proved. The disciplinary authority, appellate authority and reviewing authority ignored
the evidence of the said witnesses before the enquiry officer and erroneously chosen to accept the preliminary enquiry report, hence, the same is
liable to be quashed.
An argument was advanced by the learned Counsel for the petitioner that the Government ought not to have remanded the matter back to the
Commissioner of Police, Madurai City Police on the sole ground that the petitioner was transferred to Madurai. The said submission cannot be just
ignored, however, it is not open to the petitioner to canvass it at this stage since without any protest, the petitioner participated in the proceedings
before the said authority.
It is stated that the petitioner''s name was not considered for appointment to the post of Deputy Superintendent of Police/Assistant
Commissioner of Police on the sole ground that the above said disciplinary proceedings were pending during the relevant period and that his
juniors were promoted. In view of the fact that WP No. 12839 of 2005 is allowed quashing the disciplinary proceedings against the petitioner, the
respondents are directed to promote the petitioner to the post of Deputy Superintendent of Police/Assistant Commissioner of Police from the date
on which his junior was promoted with all attendant benefits in accordance with law, if he is otherwise eligible, within the outer limit period of three
months from today.
In the result, the writ petitions are allowed. No costs.