S.Rajapandi v. District Police Office Tiruvannamalai

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 21.02.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.A. NO. 189 OF 2008ANDM.P. NO. 1 OF 2008S.Rajapandi.. Appellant/Petitioner- Vs -1. The Superintendent of Police District Police Office Tiruvannamalai.2. The Deputy Inspector General of Police, Vellore Range Vellore... Respondents/Respondents Writ Appeal filed against the order dated 14th Sept., 2007,passed by learned single Judge in W.P. No.32809 of 2005 (T)(O.A. No.2683 of 2003).Petition filed under Article 226 of the Constitution ofIndia, to call for the records relating to (i) D.O.No.872 of2000 C.No.H1/PR.26/2000 dated 31.10.2000 of the firstrespondent; (ii) proceedings of the second respondent inC.No.B1/AP/ 117/2000 dated 05.01.2001; and (iii) proceedings ofthe first respondent bearing No.H1/PR26/2000 dated 25.07.2002and quash the above three proceedings Consequently, (i) issue adirection to the respondents to issue orders stating that theapplicant Thiru S. Rajapandi, be reinstated in service, withimmediate effect as Grade I Police Constable; (ii) that theperiod of suspension from 28.03.2000 to actual date of joiningduty after reinstatement be treated as duty for all purposeswith attendant, service and monetary benefits.For Appellant: Mr. K.S. Govinda PrasadFor Respondents: Mr. D.Srinivasan, AGP(W) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTS.J.MUKHOPADHAYA, J.This appeal has been preferred by the writ petitioneragainst the judgment dated 14th Sept., 2007, passed by learnedsingle Judge in W.P. No.32809/05. That was a writ petitionregistered on transfer from Tamil Nadu Administrative Tribunal,wherein order of punishment of dismissal from service waschallenged and upheld by learned single Judge.2. The main plea as was taken by the writ petitioner beforelearned single Judge as also before this Court is that, hehaving acquitted in the criminal proceeding, the order dated 31stOct., 2000 imposing punishment of dismissal from service shouldbe declared as illegal and has to be set aside.3. The petitioner, who was a Grade-I police constable underthe State was proceeded departmentally vide charge memo No.C.No.H1/PR.26/2000 dated 5th May, 2000. Charges on two counts werelevelled against him for the following alleged acts of omissionand commission :-i) The first charge was that one Mr.Karunanidhi, JudicialMagistrate-cum-District Munsif, Chengam, who boarded bus bearingRegistration No.TN-25-A-6935 at Tiruvannamalai bus stand forChengam, was sitting in the front seat in the bus. Near Gandhistatue, while the bus stopped for passengers, the petitioner gotinto the bus, came near the Magistrate and asked him to go andsit in the back seat thereby making space for him in the seatoccupied by the Magistrate. When the bus driver saw this andasked him not to disturb the Magistrate informing that he isChengam Magistrate, the petitioner quarrelled with the busdriver and then came to the Magistrate, asked him to leave theseat and slapped him and got down from the bus. The petitioneralso threatened the Magistrate saying that he would kill himthere itself and used unparliamentary words in Tamil.ii) The second charge was the next part of the petitioner'saction. After getting down from the bus, the petitioner, of hisown, without obtaining any sick passport, as per PSO.279, wentto Government Hospital, Tiruvannamalai, on 27th March, 2000, at21.06 hours and got himself admitted as in-patient for stomachpain. When the doctor went for rounds in the ward and wanted totreat, he found that the petitioner did not go to the ward,thereby he did not get himself admitted as in-patient, but ranaway from the hospital with the diet sheet, O.P. ticket, etc.Such action on his part was alleged to be in violation of thePSO with regard to getting a sick passport and getting treatmentfor any ailment and, at the same time, his reprehensible conductof running away from the hospital with hospital records in thenight. https://hcservices.ecourts.gov.in/hcservices/

4. In regard to the first set of charge, a criminalcomplaint was also lodged at Tiruvannamalai Police Station on27th March, 2000 at 22.20 hours. The Magistrate was sent to theGovernment Hospital, Tiruvannamalai with hospital memo. TheMedical Officer treated the Magistrate and found a contusion onthe left cheek, red in colour and gave his opinion on thecertificate. Based on the complaint, a criminal case , Cr.No.275/00 was registered in Tiruvannamalai Police Station u/s294 (b) 323 and 506 (i) IPC against the petitioner. Thepetitioner was remanded to judicial custody, which was alsonarrated in the charge sheet while charge No.1 was framed.5. The petitioner was suspended on 28th March, 2000 and inthe criminal case he was charge sheeted. So far as thedepartmental proceeding is concerned, the petitioner requestedto file his show cause reply only after the judgment in thecriminal case, but such prayer was rejected on 22nd May, 2000.The enquiry officer, after notice to the petitioner, held day-to-day enquiry between 31st July, 2000 and 31st Aug., 2000 and onappreciation of oral and documentary evidence, submitted theenquiry report on 31st Aug., 2000, holding the petitioner guiltyof both the charges. The petitioner was forwarded with a copyof the enquiry report on 30th Sept., 2000 and was asked to submithis explanation. The petitioner represented on 27th Oct., 2000and after taking into consideration the reply and enquiryreport, the disciplinary authority, vide order dated 31st Oct.,2000, agreed with the report of the enquiry officer anddismissed the petitioner from service. The said order was alsoaffirmed by the appellate authority on 5th Jan., 2001.6. The petitioner did not challenge the dismissal order orappellate order before a court of law prior to the present writpetition. It is only when he was acquitted in the criminalcase, Cr. No.275/00, vide judgment dated 26th March, 2002, givingbenefit of doubt, as the prosecution failed to lead evidencebeyond all reasonable doubt, the petitioner sought forreinstatement in service vide letter dated 15th April, 2002, andsuch prayer having rejected on 25th July, 2002, after one yearfrom the date of rejection the petitioner preferred O.A.No.2683/02 before the Tamil Nadu Administrative Tribunal, which,on abolition, was transferred to this Court and was heard bylearned single Judge.7. Learned counsel appearing for the petitioner, whilereferred to one or other circular of the State Government andjudgment of Supreme Court to suggest that the petitioner havingbeen acquitted in the criminal proceeding for the same set ofallegation, the order of dismissal is not justified.On the other hand, according to the counsel for therespondents-State, the proceeding being different and charge https://hcservices.ecourts.gov.in/hcservices/ being separate, one for misconduct and other in regard tocriminal acts, no relief should be granted.8. We have heard the parties, noticed the rivalcontentions, seen the judgment referred to and different recordsenclosed with the typed set.9. Before the writ court or before this Court, counsel forthe petitioner could not show any illegality or infirmity in thedepartmental proceeding as was initiated against the petitioner.From the records and pleadings, it will be evident that thedepartmental proceeding was conducted in accordance with lawafter giving full opportunity of hearing to the petitioner. Theenquiry officer, after appreciation of evidence on record, bothoral and documentary, came to a definite conclusion in respectof both the charges and held those charges proved against thepetitioner. A copy of the same was also forwarded to thepetitioner, but he failed to point out any defects in theenquiry report and for that the disciplinary authority agreedwith the enquiry report and punishment of dismissal was orderedvide order dated 31st Oct., 2000. The appellate authority also,by detailed order, dismissed the appeal on 5th Jan., 2001, andboth the orders were not challenged till the petitionerrequested for his reinstatement after the criminal case.10. Learned counsel for the petitioner relied on circularmemo dated 17th Sept., 1997 issued by the Director General ofPolice, enclosing Supreme court order dated 9th Aug., 1996 inCivil Appeal No.10588/96. It relates to review of order ofpunishment in case the departmental proceeding and the criminalcase are based on same set of facts, evidence and charges.Reliance was also placed on Supreme Court decision in Capt.M.Paul Anthony – Vs – Bharat Gold Mines Ltd. & Anr. reported in1999 (3) SCC 679. In the said case, the Supreme whiledetermined the scope of simultaneous continuance of departmentalenquiry with criminal proceeding, held that scope of those twoproceedings are different and they could be continuedindependently. Taking into consideration the facts of the saidcase, that both the proceeding were based on same set of facts,which were sought to be proved by the same witnesses, viz.,police, panchayat and court and that the appellant was acquittedof charges by rejecting the prosecution story, held the ex-partedisciplinary enquiry, so conducted in the said case, was notproper.11. In the present case, the petitioner cannot deriveadvantage of the aforesaid judgment rendered by the SupremeCourt. First of all, the departmental proceeding was conductedindependently giving opportunity to the petitioner, wherein hetook part. It was not an ex-parte departmental enquiry. Theorder of punishment reached finality, the appeal having been https://hcservices.ecourts.gov.in/hcservices/ dismissed and the said order having not been challenged beforeany court of law. It is after the acquittal in the criminalcase, on the basis of benefit of doubt, the petitioner soughtfor reinstatement without challenging the order of dismissal,which was rejected by the authorities.From the charge sheet it will be evident that the charge inthe departmental proceeding relate to misconduct, whereas in thecriminal case specific charge for offence under the Indian PenalCode was framed. So far as the second charge is concerned, i.e., the allegedact of the petitioner leaving the hospital with hospitalrecords, though such grave charge was levelled against thepetitioner, but no criminal case was lodged in respect of suchsecond charge. For the second charge, in absence of a criminalcase, it cannot be stated that he has been acquitted of suchcharges.12. The fact that the petitioner was a member of thedisciplined force, the nature of allegation as made in thedepartmental proceeding shows his behaviour against a judicialofficer, which he behaved inspite of information given to himthat the person was a sitting Judicial Magistrate. In any case,a police constable is not supposed to disturb another passengerof the bus, who has pre-occupied a seat. The police are therefor help to the public and not for disturbing those people, whoare passengers in a bus. The charges as made against thepetitioner are so grave, which cannot be accepted from a memberof the disciplined force. In fact, the charges showindisciplined action on the part of a police constable, whichhaving proved in the departmental proceeding call for deterrentpunishment like dismissal, which has been imposed.13. In the aforesaid circumstances, we are not inclined tointerfere with the findings of the enquiry officer, as acceptedby the disciplinary authority and the appellate authority andalso by learned single Judge and in absence of any merit, thewrit appeal is dismissed. Consequently, connected miscellaneouspetition is also dismissed. But there shall be no order as tocosts.GLNSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Superintendent of Police District Police Office Tiruvannamalai.2. The Deputy Inspector General of Police, Vellore Range Vellore.+ 1 cc to Mr. K. S. Govinda Prasad, Advocate SR No. 9112+ 1 cc to the Government Pleader, SR No.9169 JUDGMENT IN W.A. NO. 189 OF 2008CU(CO)SR/28.2.2008