S.Samdickson (Deceased) v. Deputy Inspector General of Police Ramanathapuram Range Ramanad

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09.10.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.5724 OF 2007O.A.NO.1083/2002 (T)1. S.Samdickson (Deceased)2. R.Leela Dickson ... Petitioner (Petitioner 2 substituted as Legal Representative in the place of deceased-sole petitioner as per Court Order dated 18.09.2009 in M.P.No.1 of 2009 in W.P.No.5724 of 2007)Vs.1. Deputy Inspector General of Police Ramanathapuram Range Ramanad2. Superintendent of Police District Police Office Ramanathapuram ...RespondentsPRAYER: This Writ Petition under Article 226 of the Constitution ofIndia for issuance of writ of Certiorarified Mandamus came to benumbered by way of transfer of O.A.No.1083 of 2002, to call for therecords of the first respondent herein passed in hisC.No.B1/12122/2000 dated 16.02.2002 dismissing the applicant fromservice and the consequential order passed by the second respondentherein in his Proceedings D.O.194/2002, C.No.P1/23238/2001 dated18.02.2002 and quash the same and consequentially direct therespondents to permit the petitioner to retire from service witheffect from 31.10.2000 with all consequential monetary and servicebenefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.RavishanmugamFor Respondents : Mrs.C.K.Vishnu Priya Additional Government PleaderO R D E R The Original Application in O.A.No.1083 of 2002before the Tamil Nadu Administrative Tribunal (hereinafter referredto as "the Tribunal") is now Writ Petition in W.P.No.5724 of 2007before this Court.2. Originally, O.A.No.1083 of 2002 (W.P.No.5724 of 2007)was filed by Mr.S.Samdickson, who was dismissed from service, when hewas employed as the Inspector of Police in Protection of Civil RightsUnit, Thoothukudi. While the writ petition is pending, he died on09.12.2005. Thereafter his wife got impleaded as his legal heir.3.The original petitioner joined the Police service as Sub-Inspector of Police in the year 1966 and he was promoted as Inspectorof Police in the Year 1982. He received about 40 rewards for hisefficient services. He was issued a Charge Memo dated 29.03.1998.The following charges were made against him:"i)Highly reprehensible conduct in having visitedEppodumventran along with Gr.I PC 630 N. Antony Selvarajformerly of Protection of Civil Rights Wing, Thoothukudion 13.05.1995 – demanded a bribe of Rs.5,000/- fromMr.S.Ramasubbu of Eppodumventran for not taking any actionagainst him under Protection of Civil Rights Act on thecomplaint of Mr.V.Andy of the same village and accepted asum of Rs.2,000/- as bribe from the said Mr.S.Ramasubbuand allowed him to Scot free without any action.ii)Highly unbecoming conduct of member of Police Force inhaving internationally made false entries in ThoothukudiProtection of Civil Rights unit General Diary dated13.05.1995, your note book dated 13.05.1995 and in yourItinerary Report of May 1995 with a view to conceal factsrelating to the visit of Eppodumventran and create defencefor your unlawful acts."4.The petitioner was placed under suspension on the eve ofhis retirement by an order dated 30.10.2000 and another order waspassed not permitting to retire from service on 31.10.2000 due to thependency of Disciplinary Proceeding, under F.R.56 (1)(c). https://hcservices.ecourts.gov.in/hcservices/

5.An enquiry was conducted by the Additional Superintendentof Police, District Crime Record Bureau, Thoothukudi District. Theenquiry was conducted on 26.02.2001 and 28.02.2001. The delinquentemployee did not appear as he was not well. Based on the exparteenquiry, the Enquiry Officer recorded a finding dated 22.05.2001,holding that the charges were found established. Based on the saidreport, the first respondent passed the dismissal order dated16.02.2002, after hearing the petitioner on the findings of theEnquiry Officer. The second respondent passed a consequential orderdated 18.02.2002. The original petitioner filed O.A.1083 of 2002(W.P.No.5724 of 2007) to quash the order dated 16.02.2002 of thefirst respondent and a consequential order dated 18.02.2002 of thesecond respondent and for a direction to permit him to retire fromservice with effect from 31.10.2000 with all consequential monetaryand service benefits. 6.Heard Mr.Ravishanmugam, learned counsel for thepetitioner and Mrs.C.K.Vishnu Priya, learned Additional GovernmentPleader for the respondents.7.I have perused all the materials including the replyaffidavit filed by the respondents.8.The learned counsel for the petitioner makes thefollowing submissions:-(i)The charge sheet was issued belatedly in the year 1998when the alleged occurrence took place in the year 1995 i.e., afterthree years. The delay in issuance of the charge sheet vitiates theentire disciplinary action.(ii)The delay in commencing the enquiry in the year 2001,after three years of the issuance of charge sheet, would also vitiatethe dismissal order.(iii)The relevant and crucial witness, namely, thecomplainant, Mr.S.Ramasubbu, was not examined in the enquiry and thenon-examination of the relevant witness would vitiate the dismissalorder.(iv)The findings of the Enquiry Officer is totallyperverse, since the evidence let in during enquiry was different fromthe charge alleged in the charge sheet. (v)In any event, considering his health conditions, thefirst respondent ought to have invalidated him on Medical grounds,instead of dismissing him from service. https://hcservices.ecourts.gov.in/hcservices/

9.The learned counsel for the petitioner submits that thereis absolutely no reason adduced for issuing charge sheet after threeyears of the occurrence and also no reason is adduced for holdingenquiry after three years of the issuance of the charge sheet. It isnot the case of the respondents that delinquent contributed for thedelay in issuing the charge sheet and for holding the enquirybelatedly. In these circumstances, the respondents are duty bound toexplain as to why there was delay in issuing charge sheet and also inholding the enquiry. Though a specific plea was raised in paragraph6.3 and 6.5 of the affidavit filed in support of the OriginalApplication, virtually there is no answer from the respondents in thereply affidavit. In the reply affidavit, it is sated in paragraph 5and 7 that the petitioner wantonly evaded the departmental enquiryconducted by the Additional Superintendent of Police, District CrimeRecords Bureau, Thoothukudi. The only reason given in paragraphs 5and 7 of the reply affidavit is that the petitioner wantonly evadedthe enquiry. But, the said reply affidavit is not borne out ofrecords. As per the record, the enquiry was fixed on 20.02.2001 andthe departmental witnesses were examined on 26.02.2001 and all thedepartmental witnesses were examined on the said date. Thereafter,the enquiry was adjourned to 28.02.2001 for entering defence witness.When the petitioner did not appear on 26.02.2001 and 28.02.2001, theenquiry was completed exparte. Hence it does not lie in the mouth ofthe respondents to contend that the petitioner evaded thedepartmental enquiry.10.At this juncture, it is relevant to point out that thepetitioner was not well and he was admitted as an inpatient at theInstitute of Mental Health, Chennai, for 131 days and also theyissued a certificate to Tirunelveli Medical College Hospital MedicalBoard in Ref.536/W2/99 dated 16.06.1999. The Medical Board found thathe was suffering from Organic Brain Syndnane, Parancil disorder,Diabetic and Hypertension and recommended "Invalidation on MedicalGround on 09.08.1999". Moreover Government Doctor Dr.Nagarajan alsoissued a certificate on 15.08.2000 in this regard stating that thelack of concentration, attention and memory that is unfit to traveland unfit to stand in the court of law.11.In fact the Enquiry Officer also noted that the wife ofthe petitioner informed him that the delinquent was unwell.12.The first respondent has recorded in paragraph 4 of theimpugned order, about the health condition of the delinquent, asfollows:"4.The Enquiry Officer has been drawn a provedminute based on evidences given before him in form of https://hcservices.ecourts.gov.in/hcservices/ statements. The delinquent in his explanation hasmentioned that he is a mental patient suffering formDiabetes, Hypertension and and Paranoidial disorder andhas been taking treatment for Psychotic disorders. Healso states that Doctors recommended him for Invalidationon Medical Ground on 09.08.1999. He has submitted copiesof certificates and requested to consider his case onhumanitarian grounds since he is innocent and enquiry wasfoistered on him due to another Sub-Inspector working atPCR Unit Tuticorin."In paragraph 8 of the impugned order also, the first respondentstated that in spite of his health condition, the petitioner is notentitled for lenient view. 13.The said facts make it clear that the delinquentemployee was not well from the year 1999. However, he did not ask forpostponement of enquiry. He pleaded for Medical Invalidation in viewof his health condition and that was not considered. Therefore, it isnot open to the respondents to belatedly issue a charge sheet andhold the enquiry belatedly. The learned counsel for the petitionerrelies on the following judgments in support of his submission thatthe delay would vitiate the entire proceedings:-(i) UNION OF INDIA v. CHOUDHURI reported in 2000 (3) M.L.J. 372 Paragraph:24"24.With regard to the delay, the allegedirregularities were committed in the year 1983-1984. It isnot known as to why the appellants kept quiet all theseyears. no explanation has been given by them. Theappellants should not have taken their sweet time to act.In the absence of any explanation, in the background of theearlier litigation, this Court is only rather driven tocome to a conclusion that the memo came to be issued withbad intention to harass the respondent. The inordinatedelay would certainly cause hardship and irreparable lossto the respondent and consequently, the impugned memo dated10.02.1989 and the statement of article of charges arerightly quashed."(ii) HARIS,C.P. v. THE CENTRAL WAREHOUSING CORPORATION reportedin 2000 (IV) CTC 517 Paragraph:16 and 17"16.Even by applying the test as laid down, theexplanation offered for the delay with regard to the chargememo dated 20.06.1995 is due to the pendency of thearbitration proceedings, I am of the view that the said https://hcservices.ecourts.gov.in/hcservices/ proceedings cannot be a ground for enormous delay of 13years. Even after the conclusion of the arbitrationproceedings, undoubtedly, it would be open to the aggrievedparties to go further either for approval or to set asidethe award before the appropriate forum. As far as theMemorandum of Charges dated 14.07.1998, which relate to thelapses on the part of the petitioner in the year 1991,absolutely there is no explanation for not taking actionwithin a reasonable time. Undoubtedly, delayed initiationof proceedings is bound to give room for allegations ofbias, mala fides and misuse of power. As observed in theearlier decisions, if the delay is too long and it isunexplained, the court may well interfere and quash thecharges. Undoubtedly, after a lapse of 13 years and 7 yearsrespectively, it would be difficult for the petitioner todefend himself and in such a circumstance, the enquiry hasto be interdicted. Even by applying the "process ofbalancing", I am of the view that in view of the standtaken by the petitioner that his action was approved by thehigher authorities with regard to Memorandum of Chargesdated 20.06.1995 and he was there for a short period withreference to the Memorandum of Charges dated 17.07.1998. Iam of the view that the factors are more in favour of thepetitioner for quashing the impugned charge memos. Asobserved by the Division Bench of this Court inCommissioner, Sankarapuram Panchayat union Etc. v.S.A.Abdul Wahab and others, 1996 WLR 677, nothing preventedthe respondents in the writ petitions to proceed with theenquiry immediately or within a reasonable period of oneyear or two years and complete it. Admittedly, they did notso. No acceptable material is produced before me to showthat they were prevented from proceeding with thedisciplinary action. Like-wise, there is no acceptableexplanation offered on behalf of the respondents as to whyno action was taken then and there. These facts leave nodoubt that the petitioner is subjected to harassment. Sincehe has approached this Court by way of the writ petition inW.P.No.1070 of 1993 and also initiated contempt proceedingsagainst the respondents.17. This court is conscious of the fact that it wouldnot be open to the Tribunal or Court to quash the chargeseven at the threshold. However, I have already stated thatthe alleged irregularities or lapses had taken place in theyear 1982 and 1991 respectively and action was taken onlyin the year 1995 and 1998 respectively. I have already heldthat the inordinate and unexplained delay vitiates the https://hcservices.ecourts.gov.in/hcservices/ Charge Memos and the same are liable to be quashed. Thedisciplinary proceedings cannot be initiated after a lapseof considerable time. Such delay makes the task of provingthe charges difficult and is thus not also in the interestof administration. As observed earlier, delayed initiationof proceedings is bound to give room for allegations ofbias, mala fides and misuse of power. If the delay is toolong and is unexplained, the court may well interfere andquash the charges. Here, in our cases, the petitioner hasraised a plea that the delay is likely to cause prejudiceto him in defending himself. If such plea is raised, theCourt has to weigh the factors appearing for and againstthe said plea and take a decision on the totality ofcircumstances. After the delay of 13 years and 8 years, itwould be impossible for the petitioner to remember theidentify of the witness whom he could summon to appearbefore the enquiring authority to support his case. Even ifhe could summon their presence, it would be a doubtfulproposition whether they would be in a position to rememberthat happened more than 13/8 years back and help him in hisdefence. Further more, the petitioner may not be in aposition to effectively cross-examine the witnesses to beexamined on the side of the Corporation. Practically itwould be a doubtful proposition that either the prosecutionwitness or the defence witness would be in a position toremember the facts of the case and advance the case ofeither the Corporation or the petitioner. Under thesecircumstances and on the facts and circumstances disclosed,I hold that the inordinate delay will constitute denial ofreasonable opportunity to the petitioner to defend himselfthat it would amount to violation of principles of naturaljustice and as such, the impugned Charge Memorandums mustbe struck down. By weighing all the factors both for theagainst the petitioner/delinquent officer, I hold thatquashing the Charge Memorandums is just and proper in thecircumstances."(iii) P.V.MAHADEVAN v. MD,T.N. HOUSING BOARD reported in 2005(6) SCC 636Paragraph No.11"11.Under the circumstances, we are of the opinionthat allowing the respondent to proceed further with thedepartmental proceedings at the distance of time will bevery prejudicial to the appellant. Keeping a highergovernment officials under charges of corruption anddisputed integrity would cause unbearable mental agony and https://hcservices.ecourts.gov.in/hcservices/ distress to the officer concerned. The protracteddisciplinary enquiry against a government employee should,therefore, be avoided not only in the interests of thegovernment employee but in public interest and also in theinterests of inspiring confidence in the minds of thegovernment employees. At this stage, it is necessary todraw the curtain and to put and end to the enquiry. Theappellant had already suffered enough and more on accountof the disciplinary proceedings. As a matter of fact, themental agony and sufferings of the appellant due to theprotracted disciplinary proceedings would be much more thanthe punishment. For the mistakes committed by thedepartment in the procedure for initiating the disciplinaryproceedings, the appellant should not be made to suffer."14. In view of the aforesaid discussion and also thedecisions relied on by the learned counsel for the petitioner, thedelay in issuing the charge sheet as well as the delay in holdingenquiry, without any reason, vitiates the dismissal order.15.The learned counsel for the petitioner further submitsthat the non-examination of the complainant, Mr.S.Ramasubbu, in theenquiry has resulted in denial of reasonable opportunity for thepetitioner in the enquiry. It is submitted that no reason is givenby the respondents for the non-examination of the complainantMr.S.Ramasubbu.16.Infact, the learned counsel for the petitioner submitsthat the reason given by the respondents for non-examination of thecomplainant is that Mr.S.Ramasubbu died before the commencement ofthe enquiry. But, the same has no basis and substance. It issubmitted that the respondents made certain averments withoutapplying mind to the actual facts of the matter. It is submitted thatwhile Mr.S.Ramasubbu died on 13.03.2001, it is stated that he was notexamined as he was not alive, when the enquiry was conducted. Asstated above, the enquiry took place on 26.02.2001 and 28.02.2001 andthe enquiry was concluded on 28.02.2001, when Mr.S.Ramasubbu wasalive. In fact the examination of prosecution witnesses were over on26.02.2001. It is not the case of the respondents that Mr.S.Ramasubbuwas bedridden and in spite of the efforts to bring him to enquiry, hewas not able to come and depose in the enquiry. Paragraph 'C' of thereport of the Enquiry Officer relevant for the purpose of the case isextracted here-under:"C) Prosecution: On behalf of prosecution 10 witness and15 documents were cited in the charge memo. AsMr.S.Ramasubbu, one of the P.Ws expired on 13.03.2001, https://hcservices.ecourts.gov.in/hcservices/ his name and his statement were deleted from the listthrough a proceedings and informed to the delinquentinspr. Therefore 9 P.Ws were examined in the presence ofV & AC authority. The delinquent did not attend the O.Ethough he has been summoned several times."The aforesaid statement of the Enquiry Officer is factually notcorrect as Mr.S.Ramasubbu was alive, when the enquiry was conductedon 26.02.2001 and 28.02.2001. Therefore, the submission of thepetitioner is well founded and deserves acceptance.17.The learned counsel for the petitioner further submitsthat the findings of the Enquiry Officer holding the petitionerguilty of the charges are perverse. It is submitted that in thepenultimate paragraph of the findings, it is held as follows by theEnquiry Officer:"P.Ws 1,2,6,8,9 clearly deposed about the demand ofRs.5,000/- and acceptance of Rs.2,000/- from Mr.S.Ramasubbuto avoid registration of a case under PCR ACT on thecomplaint of Mr.Andy. From the deposition of P.W.6 and otherPws 1,2,7,9 the count No.1 of charge is proved."The finding recorded, as extracted above, is in terms of the chargememo. But in the enquiry, the only witness, who spoke about thedemand and receipt of bribe was P.W.8, the brother of Mr.S.Ramasubbu.According to P.W.8, the delinquent demanded bribe from P.W.8 andreceived the amount from P.W.8. In this context, the learned counselfor the petitioner submits that since the prosecution did not examineMr.S.Ramasubbu, they let-in evidence conveniently by examining P.W.8,as if the demand was made from P.W.8 and the bribe was paid byP.W.8. But the same was not the charge. The other witnesses 1,2,7 and9, nowhere stated about the payment of bribe from P.W.8 andacceptance of bribe from P.W.8. Further these witnesses were not theeye-witnesses to the incident. Hence, the prosecution, withoutexamining the complainant, had sought to alter the charge during theenquiry, is the submission made by the learned counsel for thepetitioner. The submission of the petitioner cannot be brushed aside,as there is no answer for the same from the respondents. 18.In fact, in the reply affidavit it is stated inparagraph 8 that the delinquent demanded bribe from Mr.S.Ramasubbuand accepted bribe from him. But that is not the evidence adducedduring the course of enquiry.19.The learned counsel for the petitioner correctlysubmits that when a serious allegation of demanding and accepting ofbribe from Mr.S.Ramasubbu is made and that would result in https://hcservices.ecourts.gov.in/hcservices/ deprivation of livelihood, the burden is on the respondents toestablish the charge. Hence, characterization of the findings of theEnquiry Officer, as perverse by the learned counsel for thepetitioner deserves acceptance.20.Finally, the learned counsel for the petitioner submitsthat when the Medical Board found him unfit to carry out the job inthe year 1999, it was even before the Enquiry Officer recorded afinding of guilt. The respondents do not dispute about the bad healthcondition of the petitioner. In fact, it has been mentioned by thefirst respondent in the impugned order itself that has been extractedabove. When such a serious charge is made, the first respondentcorrectly stated that he was not entitled to a lenient treatment ofpermitting him to go on Medical Invalidation. However, when theentire disciplinary proceeding is vitiated for the aforesaid reasons,the bad health condition of the workman and his subsequent demise canalso be taken into account for moulding the relief to be given in thewrit petition.21.The learned counsel for the petitioner submits that thedelinquent was continuing in employment even after the allegedoccurrence in the year 1995. He was placed under suspension only on30.10.2000, on the eve of his retirement on 31.10.2000. Thereforethis situation can also be considered for granting pension and totake a lenient view of the matter, as he is no more.22.As far as the second charge is concerned, the learnedcounsel for the petitioner submits that the charge could not bebrought under Rule 3 (b) of Tamil Nadu Police Subordinate Service(Disciplinary and Appeal) Rules 1955. It is submitted that it is notthe case of the respondents that the petitioner did not go to theVillage, namely, Eppodumventran. On the other hand, the charge wasthat there was no entry in the diary about his visit to the villageEppodumventran, on the basis of the complaint by one Mr.Andy thatMr.S.Ramasubbu abused him with his caste name. Therefore, even if thecharge is held to be proved the learned counsel for the petitionersubmits that it would result only in minor punishment under Rule 3(a)of the said Rules. 23.I am of the considered view that the second charge is aminor charge. Admittedly the delinquent went to the concerned villageand enquired Mr.S.Ramasubbu. The delinquent sent a word toMr.S.Ramasubbu to be present in the Panchayat Office premises atEppodumventran village for enquiry on the complaint given by Mr.Andy.Therefore, the petitioner would not be benefited by not recording inthe diary about his visit to village in any way. Hence this charge isof minor nature. https://hcservices.ecourts.gov.in/hcservices/

24.Taking into account the totality of the matter, theimpugned orders are hereby quashed. Since the impugned orders arequashed, respondents are directed to settle the terminal benefitsincluding pension to the legal-heirs within a period of eight weeksfrom the date of the receipt of this order. The writ petition isordered on the above terms. No costs. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar rnsTo1. Deputy Inspector General of Police Ramanathapuram Range Ramanad2. Superintendent of Police District Police Office Ramanathapuram+ 1 cc to M/s. Sudha Ravi, Associates, SR No.52727+ 1 cc to The Govt. Pleaser SR No.52964W.P.No.5724 OF 2007RS (CO)RH (19.10.09)