U.Rajiah v. The Secretary to the GovernmentHome Department, Fort St.GeorgeChennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:03.12.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NO.5746 OF 2008..U.Rajiah.. Petitionervs.1.The Secretary to the GovernmentHome Department, Fort St.GeorgeChennai 9.2.The Additional Director General of Police, Law & Order,Tamil Nadu, Chennai.3.The Deputy Inspector General of Police, Chingleput RangeKancheepuram Range.4.The Additional Superintendent of PoliceDistrict Crime BranchTirunelveli District... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamusas stated therein.For petitioner : Mr.M.S.SoundararajanFor respondents: Mr.T.Seenivasan Government Advocate ..ORDERThe writ petitioner was appointed as a Police Constable on01.5.1969 and was promoted as Inspector of Police in the year1994 and he retired from service on superannuation on 31.05.2005.While he was working as Inspector of Police in Thirupalaivanamvillage in Tiruvallur District, charges under Rule 3(b) of theTamil Nadu Police Subordinate Services (Discipline and Appeal)Rules,1955 were framed. The three charges framed were as under: https://hcservices.ecourts.gov.in/hcservices/ "(i) Gross neglect of duty in not controllingprohibition offences in his jurisdiction from 1.1.2002to till date and receiving weekly Mamool of Rs.5000/-from prohibition offenders Periyasamy and Dhanapal forallowing to sell ID arrack.(ii) Gross misconduct and dereliction of duty innot handing over the CD file in ThirupalaivanamP.S.Cr.No.59/2002 u/s.147, 148, 452 & 506 (ii) IPC r/w3(10(x) of SC/ST Act after addition of SC/ST Act on23.06.2002 to Deputy Supdt. Of Police, Ponneri forfurther investigation and continuing investigation inthis case and remanding the accused.(iii) Gross neglect of duty in not recording theseizure of 56 empty cans of 35 litres of capacity inThirupalaivanam P.S.Cr.No.58/2002 4(1-A), 4(1)(a) ofTNP Act on 13.06.2002 and recording seizure only 2 cansof arrack each of 35 litres and a Bajaj M-80 motorcycle."2. The said charges were framed by the Superintendent ofPolice, Tiruvallur District. An oral enquiry was conducted by theAdditional Superintendent of Police, District Crime RecordBureau, Tiruvallur District, in which nine witnesses wereexamined and 33 documents were marked on the side of theprosecution, while two witnesses were examined and thirty fourdocuments were marked on the side of the delinquent. The EnquiryOfficer has sent a report holding that all the charges areproved. The third respondent, while agreeing with the findings ofthe Enquiry officer, has passed an order of punishment on23.07.2003, viz., postponement of increment for two years withoutcumulative effect. 2(a). On appeal filed by the petitioner against the saidorder, the second respondent, by his order dated 03.12.2003,rejected the appeal, against which the petitioner filed a mercypetition before the first respondent, which came to be rejectedin G.O.(2D).No.435 Home (Pol.IV) Department dated 18.07.2006. Itis as against the said orders of the respondents, the petitionerhas filed the present writ petition.3. The impugned orders are assailed by the petitioner on themain ground that the charges are vague and not definite; thatthere is no evidence for the petitioner having been involved inthe charges; that the findings of the respondents are perverseand that the evidence of various witnesses have not been properly https://hcservices.ecourts.gov.in/hcservices/ appreciated by the respondents.4. It is the main contention of the learned counselappearing for the petitioner that even the prosecution witnessesviz., PW.1, PW.2 and PW.3, who are alleged to have paid theamount to the petitioner by way of mamool, have not statedanything about the same and in fact, they have stated that nosuch statement has been given by them before the police at all.4(a). In respect of second charge that the petitioner hasnot handed over the CD files of certain crime numbers under SC/STAct, it is his contention that the files have been handed over tothe Deputy Superintendent of Police, who has not taken up theinvestigation and who instructed the petitioner to investigateand file charge sheet and it was on the directions of the DeputySuperintendent of Police, the petitioner conducted theinvestigation and the accused were arrested only under hissupervision. It is the case of the petitioner that the saidDeputy Superintendent of Police Mr.R.S.Venugopal, examined asPW.8 in the case, has admitted the same during cross-examinationthat he visited the area and was aware of the arrest of theaccused. 4(b). In respect of the third charge for not recording theseizure of 56 empty cans of 35 litres of capacity, it is the caseof the petitioner that he seized only two cans containing 35litres of arrack and a Bajaj M-80 motor cycle at the time of raidon 13.06.2002 and the Sub-Inspector of Police as well as one ofthe witnesses attested the seizure mahazar and the Sub-Inspectorof Police, who has ill-disposed towards the petitioner has givena false statement, even though he has attested the seizuremahazar.5. It is the case of the respondents in the counteraffidavit that even though it is true that during oral enquirythe prohibition offenders did not depose to the fact of payingweekly mamool to the petitioner, it was taking note of the poordetection of prohibition cases, the Enquiry Officer's report wasaccepted by the third respondent on the basis of preponderance ofprobabilities. The second respondent, appellate authority, whileconcurring with the third respondent, has held that theprocedural irregularities have not resulted in miscarriage ofjustice. It is further reiterated that it is, the poor statisticsof detection of prohibition cases of the petitioner that wentagainst him in proving the first charge. 5(a). As far as the second charge is concerned, the CD fileswere not handed over to the Deputy Superintendent of Police by https://hcservices.ecourts.gov.in/hcservices/ the petitioner and he failed to send the copy of the sectionalteration report and proceeded to arrest the accused, since hewas not empowered to investigate a case under SC/ST (P&A) Act. Itis also stated that even though the independent witnessesPeriyasami PW.1, Chinnapaiyan PW2 and Dhanapal PW3, who arealleged to have paid the weekly mamool have turned hostile anddenied the statements made by them under Exs.P.1 to P.3, all thethree witnesses are arrack sellers and since they need the helpof the police, they have denied the statements earlier given bythem against the petitioner. It is also stated that PW.1 has notspecifically stated that he has not paid mamool to thepetitioner/delinquent at the rate of Rs.5,000/- every week whileother witnesses have denied about the payment of weekly mamool tothe delinquent officer.5(b). In respect of the third charge about the seizure ofcans, it is stated by the respondents that if the remaining canswere already in the Police Station, the petitioner should haveinformed the same to the superiors and he allowed the empty cansto be kept in the station without recording the seizure and itwas ascertained from the Sentry Head-constable PW.4 and the Sub-Inspector of Police PW.6 that they were seized by the petitioneron 13.06.2002 from Mangodu Kuppam and therefore, during the oralenquiry, the charge that the delinquent was grossly negligent induty and did not record the seizure of 56 empty cans of 35 litrescapacity, has been proved and he has recorded only about theseizure of 2 cans of arrack and a Bajaj M.80 motor cycle.6. On a reference to the entire records, it is true that inrespect of the first charge the main witnesses, viz., PWs.1 to 3have not deposed against the petitioner, but the respondents havecome to the conclusion that the said witnesses have not statedthat they did not pay mamool to the petitioner. It is true thatthe strict principles of evidence are not applicable to theDepartmental proceedings and it is the preponderance ofprobabilities that is sufficient to decide the charges, but atthe same time, one has to realize that the basic principles ofthe Evidence Act are to be followed. It is the prosecution, whichhas to prove the case and that being the position, in respect ofthe first charge, the authorities have come to the conclusionthat the prosecution witnesses have not stated that they did notpay any mamool to the petitioner and that, by taking note of thefact that there has been reduction in number of prohibitionoffences registered by the petitioner in the police station, itshould be presumed that the first charge against the petitioneris proved. https://hcservices.ecourts.gov.in/hcservices/

7. A reading of the first charge shows that the same is veryvague and certainly in respect of the vague charge, it is notpossible for the delinquent to defend himself effectively in themanner known to law. But, in respect of other two charges, it isadmitted that the second charge relates to conversion of a caseinto one under SC/ST Act, in which the petitioner cannot be theinvestigating officer as per law. However, the case of thepetitioner is that the at the instance of the DeputySuperintendent of Police and at his guidance, he has investigatedthe same. 8. In this regard, the learned counsel appearing for thepetitioner has relied upon the statement of PW.6, Sub-Inspectorof Police - Gnana Rajakumar. During cross-examination PW.6 hasstated that the petitioner after obtaining instructions from theDeputy Superintendent of Police, Uthukottai, directed him (PW.6)to prepare the remand report and accordingly, he prepared aremand report. The Enquiry Officer in this regard has found thatthe petitioner ought to have enclosed the entire CD file alongwith his report to the Deputy Superintendent of Police forfurther investigation and without doing so, he has proceeded toarrest the accused and remanded him to judicial custody, to whichhe is not entitled. This fact has been brought out by the EnquiryOfficer in his report and that has been accepted by the thirdrespondent as original authority while imposing punishment.Therefore, it cannot be said to be a case without any evidence asfar as the second charge is concerned. 9. Prima facie when the offence has been converted into oneunder SC/ST Act, the petitioner loses his right of investigationand it is his duty to send the entire papers along with the CDfiles to the higher officer, viz., the Deputy Superintendent ofPolice, who alone is competent under the Act to investigate andhaving not done so, the petitioner has taken a stand that he hasinformed the Deputy Superintendent of Police and at his instanceonly he arrested the accused. When such conduct is not permittedin law, the Enquiry Officer on evidence has found that there arematerials in respect of dereliction of duty and it is not forthis Court to substitute its view on the question as to whethersuch evidence is adequate or not, especially in the circumstancethat the disciplinary authority has imposed a minor punishment.10. In respect of third charge, it is the petitioner’sdefence that he has seized only two cans and the remaining emptycans were available in the police station and they were notseized by him. But, the Enquiry Officer has come to the https://hcservices.ecourts.gov.in/hcservices/ conclusion that the petitioner has not taken effective steps incontending the prohibition offences and the petitioner has notexplained as to how he allowed the remaining cans in the policestation without informing the superior officers and on thatbasis, arrived at a conclusion that there is dereliction of dutyon the part of the delinquent. Even though there may be certaindoubts about the real event, when the Enquiry Officer, againstwhom no bias has been attributed to by the petitioner, has culledout some evidence, it is not for this court to decide as to theveracity of such evidence and whether it is significant or not,while exercising jurisdiction under Article 226 of theConstitution of India. In disciplinary matters, this Court cannotsit in appeal on the factual findings of the Enquiry Officer orthe Disciplinary authority or the appellate authority.11. In such view of the matter, I am of the considered viewthat if not the first charge, but the second and third charges,cannot be said to be without evidence at all, or the findings inrespect of those charges cannot be presumed to be perverse. Inthese circumstances, I am of the view that there is no necessityto interfere with the findings of the respondents against thepetitioner. Accordingly, the writ petition fails and the same isdismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarKhTo1.The Secretary to the Government Home Department, Fort St.GeorgeChennai 9.2.The Additional Director General of Police, Law & Order,Tamil Nadu, Chennai.3.The Deputy Inspector General of Police, Chingleput RangeKancheepuram Range. https://hcservices.ecourts.gov.in/hcservices/

4.The Additional Superintendent of PoliceDistrict Crime Branch Tirunelveli District.+1cc to Govt.Pleader Sr 66277+1cc to Mr.M.S.Soundararajan,Advocate Sr 66331KA(CO)km/10.12.W.P.No.5746 of 2008