S. Muniraj v. The Superintendent of Police Coimbatore District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.08.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.5933 OF 2007S.Muniraj... Petitioner Vs.1.The Superintendent of Police Coimbatore District.2.The Deputy Inspector General of Police Coimbatore Range, Coimbatore. ... RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.301 of 2002from the file of Tamil Nadu Administrative Tribunal with a prayerto call for the records of the respondents in connection with theimpugned order passed by the first respondent in Na.Ka.No.JI/PR135/2000 dated 24.08.2001 and quash the same and direct therespondent to reinstate the applicant into service and grant himall consequential service and monetary benefits.For Petitioner:Mr.K.VenkatramaniSenior Counsel for Mr.M.MuthappanFor Respondents :Mrs.C.K.Vishnupriya, Additional Government pleader O R D E RThe petitioner entered into the service as Grade – IIPolice Constable in Coimbatore City (Armed Reserve) in 1986. Hebecame Grade – I Police Constable on upgradation, in 1994. In1995, the Government promoted him as Head Constable by way ofaccelerated promotion for his courageous act for nabbing an hardcore terrorist.2.The petitioner was in-charge of the Thudiyalur PoliceStation from 09.00 p.m. on 10.01.1999 to 08.00 a.m. on 11.01.1999.Another Head Constable viz., Mr.Myilsamy was the only other personposted in the Police Station during the same time between 09.00 https://hcservices.ecourts.gov.in/hcservices/ p.m. on 10.01.1999 and 08.00 a.m. on 11.01.1999. He was a ParaPolice Constable on that day. The Inspector was on leave duringthat time and other Police Constables were on night patrolling dutyin the villages in and around the Police Station. The Sub-Inspector of Police was at home. 3.While he was serving as Head constable in ThudiyalurPolice Station, Coimbatore, he was compulsorily retired fromservice by an order dated 24.08.2001 of the first respondent, byway of punishment. The said order is challenged in O.A.No.301 of2002 (W.P.No.5933 of 2007). 4.Heard the submissions made by Mr.K.Venkatramani,learned Senior counsel for the petitioner and Mrs.C.K.Vishnupriya,learned Additional Government Pleader for the respondents. 5.The undisputed facts, for better appreciation of thefacts are as follows:(a) One Mr.Paraman, who is the neighbour to the shopkeeper Mr.Kasparaj, noticed that two persons attempted to breakopen the shop in VOC Nagar, Coimbatore at about 02.00 a.m. on11.01.1999. He immediately went to the residence of Mr.Kasparajand informed the same. (b) When both of them came to the shop, one Arumugam andanother person, who involved in the attempt to break open the shop,flew from the scene, and the other person escaped, whileMr.Arumugam hit against a standing lorry and fell down. He wasapprehended and tied in an electric lamp post. (c) Mr.Kasparaj went to inform the matter to thePresident of the Merchants' Association in a two wheeler. But thePresident was not available. Then they met the other office bearerMr.Janakiraman (P.W.4) and informed him about the incident. (d) In the meantime, Mr.Kasparaj along with Mr.Paramaninformed the Councilor of the area Mr.Nanjappan about the incident,through one Mr.Jayaraj. (e) Mr.Jayaraj told Mr.Kasparaj that he passed on themessage to the Councilor through phone and the Councilor had inturn agreed to pass on the message to the Thudiyalur PoliceStation. (f) Since no police arrived to the scene of occurrence,Mr.Janakiraman informed Thudiyalur Police Station. https://hcservices.ecourts.gov.in/hcservices/ (g) According to Mr.Paraman, it was at about 05.20 a.m.that Mr.Janakiraman telephoned to Thudiyalur Police Station,informing the incident. At the same time, Mr.Janakiraman informedthe matter to the Police Control Room. (h) During the night time between 02.00 a.m. to 05.30a.m., the local people of the area is said to have beaten the saidArumugam, who was tied in the electric lamp post, according toMr.Kasparaj and Mr.Paraman. They stated that the said Arumugamchallenged the people and also used some abusive words, whichprovoked them to beat him. (i) On receipt of the information at about 05.30 a.m.,the petitioner recorded the same in the General Diary and alsoinformed the same to the Sub-Inspector, who was at home. (j) The Head Constables viz., Asaithambi and Satyamurthy,who were on patrol duty returned back at 05.30 a.m. to the policestation. They were sent to the place of occurrence at VOC Nagar bythe petitioner to take appropriate action. (k) On receiving the information through Police ControlRoom, the Assistant Commissioner of Police arrived at the spotearlier because of his close proximity and also because he was inpossession of a vehicle. He arrived at the spot between 05.35 a.m.and 06.15 a.m. and after making certain enquiries, he took theinjured Arumugam and three others viz., Mr.Kasparaj, Mr.Paraman andone Mr.Savarimuthu in the police jeep. (l) The Head Constables telephoned the petitioner, onreaching the scene of occurrence at about 07.00 a.m. that alreadythe Assistant Commissioner of Police came to the spot and took theinjured person in his jeep. (m) The Assistant Commissioner of Police mistook that theVOC Nagar comes under the jurisdiction of Saibaba Colony PoliceStation, though Mr.Kasparaj told him that the area comes under thejurisdiction of Thudiyalur Police Station. Hence he took theinjured person to the Saibaba Colony Police Station and thereafterfinding that the said Police Station did not have jurisdiction, hetook them to the Thudiyalur Police Station at 07.20 a.m.(n) As stated above, the Head Constables sent by thepetitioner, arrived at the scene of occurrence after the AssistantCommissioner of Police left from the scene of occurrence with theinjured person along with others. (o) Likewise, the Councilor, who is said to have informedthe Police Station at about 02.00 a.m. arrived at the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence at 06.30 a.m., i.e. only after the AssistantCommissioner of Police took away the injured person. (p) On receipt of information from the petitioner, theSub-Inspector of Police arrived at the Police Station at 07.00 a.m.and as soon as the injured person was brought to the Police Stationby the Assistant Commissioner of Police, the Sub-Inspector ofPolice sent the injured person to the hospital, without evenobserving the formalities of registering a case and issuing themedical memo, so as to give immediate treatment to the injuredperson. The Sub-Inspector sent the injured person to the hospitalalong with the complainants, viz., Mr.Kasparaj, Mr.Paraman andMr.Savarimuthu, who were later made accused in the criminal caseunder Section 302 IPC, for causing death of Mr.Arumugam (injuredperson). The Sub-Inspector of Police directed the petitioner tofollow them. Accordingly, he did. (q) Unfortunately, the injured person died while he wastaken to the hospital, due to the severe beating in the night bythe local people of VOC Nagar. (r) The death of the person in such circumstances led toan enquiry by Revenue Divisional Officer, under Police StandingOrder No. 145 and the Revenue Divisional Officer gave a report tothe District Collector on 21.09.1999. In the said report, it isstated that if the petitioner acted immediately on receipt of theinformation at around 02.15 a.m. on 11.01.2009 about theapprehension of one Mr.Arumugam for his alleged involvement in anattempt to break open a shop, the life of the said person couldhave been saved. The report also stated that the injured was sentto the hospital, not along with the Police Constables, but, on theother hand, along with the complainants, who brought the injuredperson to the Police Station and who later were prosecuted underSection 302 IPC for causing death of Mr.Arumugam. (s) The said report of the Revenue Divisional Officer wasforwarded by the District Collector to the Government on 29.12.1999and the Government in G.O.(D)No.769, Public (Law and Order - A)Department, dated 09.06.2000, ordered prosecution againstMr.Kasparaj and Mr.Paraman for causing death of the deceasedArumugam and departmental action against the petitioner as well asthe Sub-Inspector of Police, based on the report of the RevenueDivisional Officer. That is, the entire disciplinary actionagainst the petitioner is based on the premises that he received amessage through phone call at about 02.15 a.m. about the allegedapprehension of one Mr.Arumugam while attempting to break open theshop at V.O.C. Nagar and he failed to act on the same. https://hcservices.ecourts.gov.in/hcservices/

6.In the said backdrop, a charge memo dated 17.08.2000was issued by the first respondent under Rule 3(b) of the TamilNadu Police Subordinate Service Rules and the charges framedagainst the petitioner are extracted here-under:"m. Fw;wk;:1. fle;j 10.1.1999 md;W ,ut[ 02.00 kzpastpy; JoaY}h; fhty;epiyavy;iyf;Fl;gl;l tp.x.rp. efhpy; cs;s xU kspif filapy; jpUl Kad;w MWKfk;vd;gth; gpogl;L fl;o itf;fg;gl;Ls;sJ Fwpj;J bjhiyngrp \yk; JoaY}h;fhty;epiyaj;jp;y; ,ut[ 09.00 kzpKjy; kWehs; fhiy 08.00 kzptiugzpapypUe;j ckf;F ,ut[ 02.00 kzpKjy; jfty; mDg;gg;gl;L ,Ue;Jk;, nky;mjpfhhpfspd; ftdj;jpw;F cldoahf bfhz;Ltuj;jtwpa flikapypUe;J jtwpabray;.2. nkw;go rk;gtk; bjhlh;ghf rk;gt ,lj;jpypUe;J cldoahf fhtyh;fismDg;g ve;jtpjkhd eltof;ifa[k; nkw;bfhs;shky; rk;ge;jg;gl;l egUf;F kUj;Jtrpfpr;ir mspf;f kUj;Jtkidf;F bghWg;ghd fhtyh;fs; \yk; mDg;gpitj;Jchpa neuj;jpy; kUj;Jt rpfpr;ir mspf;fg;glhjjd; \yk; mtuJ ,wg;gpw;Ffhuzkhf ,Ue;jJ xG';fPdkhd bray;". 7.The crux of the first charge was that the petitionerreceived a phone call around 02.00 a.m. on 11.01.1999 about thealleged incident. But he failed to act on the same, by bringing tothe notice of the higher authorities. The second charge was thathe failed to send Police Constables to the scene of occurrence andthat he failed to send the injured person to hospital for treatmentat proper time along with responsible Police Constables and thatthereby he became responsible for the death of the injured person.8.An enquiry was held by one Deputy Superintendent ofPolice. In the enquiry, 12 witnesses were examined and 17documents were marked as exhibits, on the side of the Department.The petitioner made a statement in the enquiry, but he was notsubjected to cross examination on the statement. 9.The Enquiry Officer submitted a report dated 14.12.2000holding that the charges were proved against the petitioner. Basedon his findings, the petitioner was imposed the punishment ofcompulsory retirement by the impugned order dated 24.08.2001 of thefirst respondent, which is challenged in the present writ petition.10.The learned Senior Counsel for the petitioner hasbroadly made three submissions. He submits that the Enquiry Officeras well as the Disciplinary Authority, have erroneously proceededthat the petitioner received phone call at about 02.00 a.m. on https://hcservices.ecourts.gov.in/hcservices/

11.01.1999 from P.W.5 - Mr.Nanjappan, the Councilor of the area,about the incident. Solely based on the oral evidence of P.W.5 –Mr.Nanjappan, Councilor, without taking note of the fact that hisevidence is contrary to the documentary evidence viz., the GeneralDiary, wherein, the events of the night were recorded by thepetitioner and also the evidence of P.W.10 - Mr.Myilsamy, HeadConstable, who was examined as a departmental witness and whocategorically spoke that no phone call was received at about 02.00a.m., a finding was arrived at that the petitioner received phonecall at about 02.00 a.m. on 11.01.1999. The second and thirdsubmissions relate to charge No.2. It is submitted that the chargeitself could not be made against the petitioner. On 11.01.1999 at07.00 a.m, the Sub-Inspector of Police, who arrived at the PoliceStation, took over the charge from the petitioner and in fact, heonly sent the injured person to the hospital and therefore, thecharge itself is defective. Thirdly, according to the learnedSenior counsel for the petitioner, the findings of the EnquiryOfficer was that the petitioner was not found in the hospital alongwith Mr.Arumugam, when the Doctor in the emergency ward, declaredMr.Arumugam, the injured person, dead. It is submitted that no suchcharge was framed in the charge sheet and therefore, the EnquiryOfficer and the Disciplinary Authorities committed error inrecording a finding against something which was not a charge atall. Such an action amounts to violation of principles of naturaljustice. It is further submitted that the Tamil Nadu AdministrativeTribunal quashed the punishment imposed on the Sub-Inspector ofPolice for the similar charge as charge No.2 that was allegedagainst the petitioner. 11.The learned Senior counsel for the petitioner submitsthat if at all any one has to be blamed, it is only the AssistantCommissioner of Police, who arrived the around 05.45 a.m. andfailed to take the injured person straight away to the hospital andto give him treatment. If he acted prudently by giving immediatetreatment to the injured person, the injured person could have beensaved. In fact, the learned Senior counsel for the petitionersubmits that the Sub-Inspector of Police acted strictly withoutloss of any time by sending him immediately, without even observingthe formalities as stated above. However, the Sub-Inspector ofPolice and the petitioner faced the charges, while the AssistantCommissioner of Police was let off without even any proceedingsagainst him. 12.The learned Senior counsel for the petitioner submitsthat from the facts narrated above, P.W.1 – Mr.Kasparaj admits thathe did not inform the Police Station directly about the incident.He informed the incident through one Mr.Jayaraj to the CouncilorMr.Nanjappan. The other witnesses viz., P.W.2 – Mr.Paraman, P.W.3 –Mr.Savarimuthu, who were also at the scene of occurrence after https://hcservices.ecourts.gov.in/hcservices/

02.00 a.m. did not also phone to the police station. The onlyperson, who is said to have informed the Thudiyalur Police Stationat about 02.00 a.m. was Mr.Nanjappan – the Councilor, on gettingtelephonic information through Mr.Jayaraj. The other person viz.,Mr.Janakiraman, the office bearer of the Merchants' Association,telephoned the Police Station at 05.20 a.m. as seen from theevidence of Mr.Paraman. 13.Mr.Nanjappan, who was examined as P.W.5, deposed thathe telephoned at about 02.00 a.m to Thudiyalur Police Station andthat the Constable, who attended the phone call, informed him thatother Police Constables were left for night patrolling and as soonas they returned, he would send a Police Constable to fetch theaccused. 14.The learned Senior counsel for the petitioner submitsthat relying solely on his evidence, the Enquiry Officer and theDisciplinary Authority came to the erroneous conclusion that thefirst charge was established. 15.Though such a submission is attractive, I am not anappellate authority to re-appreciate the evidence and to make adetailed analysis of the evidence to come to the conclusion.Therefore, based on this submission alone, the evidence ofMr.Nanjappan could not be rejected by the writ Court to hold thatthe first charge was not established. However, the learned Seniorcounsel for the petitioner submitted that the Enquiry Officer aswell as the Disciplinary Authority failed to take into account thedocumentary evidence viz., General Diary which was marked as Ex.P.1in the enquiry. He further submits that the documentary evidencewould always prevail over the oral evidence. If the documentaryevidence is available, the oral evidence contrary to thedocumentary evidence has to be rejected. The learned Senior counselfor the petitioner submits that as per the General Diary, no phonecall was received at about 02.00 a.m. It should be presumed thatnoting in the documents are true and no motive could be alleged onthe petitioner that he deliberately failed to record a phone callat about 02.00 a.m., since nobody could visualize that the mattercould have become a disciplinary proceeding subsequently. 16.In this connection, learned Senior counsel for thepetitioner cites a decision reported in 1994 (II) L.L.N. 220(BRAKES INDIA LTD., VS. ASSISTANT COMMISSIONER OF LABOUR) that oralevidence cannot prevail over documentary evidence. 17.Furthermore, the learned Senior counsel for thepetitioner submits that apart from not considering the documentaryevidence viz., the General Diary, the Enquiry Officer and theDisciplinary Authority also failed to take into account the https://hcservices.ecourts.gov.in/hcservices/ deposition of P.W.10 in favour of defence. P.W.10 – Mr.Myilsamy –Para Constable, deposed that no phone call was received at about02.00 a.m and on the other hand, he deposed that a phone call wasreceived only at 05.20 a.m. The learned Senior counsel for thepetitioner submits that Mr.Myilsamy was not examined as a defencewitness and on the other hand, he was examined as a witness of theDepartment. If a Department witness gave evidence in favour ofdefence, that would not be ignored by the Enquiry Officer and bythe Disciplinary Authority. If they failed to take into accountthe deposition of prosecution witness in favour of the defence, thefindings of the Enquiry Officer has to be characterised as perverseand the impugned order of the first respondent, based on suchfinding has to be set aside. 18.In support of his submission, the learned Seniorcounsel for the petitioner relied on a decision of the HonourableSupreme Court in M.V.BIJLANI VS. UNION OF INDIA AND OTHERS reportedin 2006 (5) SCC 88, wherein, the Honourable Apex Court held thatthe deposition of a departmental witness in favour of defence hasto be considered and non-consideration of the same would render thefindings of the Enquiry Officer as well as the DisciplinaryAuthority vitiated. 19.Therefore, if the submission of the learned Seniorcounsel for the petitioner is confined only seeking to analyse theevidence, I could have simply rejected the same as I cannotsubstitute my opinion to that of the Enquiry Officer / DisciplinaryAuthority while exercising jurisdiction under Article 226 of theConstitution of India. But the learned Senior counsel for thepetitioner submits that the failure on the part of the EnquiryOfficer and the Disciplinary Authority to take into account thedocumentary evidence viz., the General Diary and also the evidenceof prosecution witness in favour of defence would render thefinding of guilt perverse and that submission finds acceptance tome. As far as the second charge is concerned, the learned Seniorcounsel for the petitioner submits that when the same charge wasmade against the Sub-Inspector of Police, the Tribunal, quashed thepunishments imposed on the Sub-Inspector of Police, based on thesaid charge. 20.The learned Senior counsel for the petitioner submitsthat charge No.2 as framed in the charge sheet could not be madeagainst the petitioner, since the Sub-Inspector of Police took overthe charge of Police Station at 07.00 a.m and he only sent theinjured person to the hospital. The learned Senior counsel for thepetitioner submits that the findings of the Enquiry Officer thatthe petitioner was not present at the hospital, when the Doctordeclared the death of the injured person have to be ignored as thesame was not the charge alleged in the charge memo. The petitioner https://hcservices.ecourts.gov.in/hcservices/ was not found at that place is not a charge made in the chargesheet. If the petitioner was not put to notice about the charge,then the Enquiry Officer is not justified in rendering a finding ona different charge. Such a finding is violative of principles ofnatural justice. 21.In support of his submission, the learned Seniorcounsel for the petitioner relied on a decision of the HonourableApex Court in M.V.BIJLANI VS. UNION OF INDIA AND OTHERS reported in2006 (5) SCC 88 and the relevant portion of the said judgment isextracted here-under: "25.It is true that the jurisdiction of thecourt in judicial review is limited. Disciplinaryproceedings, however, being quasi-criminal innature, there should be some evidence to prove thecharge. Although the charges in a departmentalproceeding are not required to be proved like acriminal trial i.e. beyond all reasonable doubt, wecannot lose sight of the fact that the enquiryofficer performs a quasi-judicial function, who uponanalysing the documents must arrive at a conclusionthat there had been a preponderance of probabilityto prove the charges on the basis of materials onrecord. While doing so, he cannot take intoconsideration any irrelevant fact. He cannot refuseto consider the relevant facts. He cannot shift theburden of proof. He cannot reject the relevanttestimony of the witnesses only on the basis ofsurmises and conjectures. He cannot enquire intothe allegations with which the delinquent officerhad not been charged with".22.The learned Senior counsel for the petitioner alsosubmits that the concerned Medical Officer, who declared the deathof the injured person, was also not examined in the departmentalenquiry and this factor also should be taken note of by this Court.However, the Enquiry Officer recorded a finding based on thedeposition of Mr.Kasparaj. He further submits that the evidence ofMr.Kasparaj cannot be relied on, since he was an accused by thevery same Department for causing the death of the injured personand he faced prosecution under Section 302 IPC in S.C.No.435 of2002 before the First Additional Sessions Judge cum Chief JudicialMagistrate, Coimbatore. 23.The learned Additional Government Pleader for therespondents submits that the petitioner was given opportunity inthe enquiry and the charges were held to be proved in the enquiryconducted in accordance with the Service Rules. There is no https://hcservices.ecourts.gov.in/hcservices/ infirmity in the findings recorded by the Enquiry Officer. Basedon the proved misconduct, the first respondent imposed thepunishment of compulsory retirement, which could not be normallyinterfered by this Court, in exercise of its jurisdiction underArticle 226 of the Constitution of India.24.I find force in the submissions made by the learnedSenior counsel for the petitioner. When the charge was onething,the Enquiry Officer could not record the finding on a differentmatter. Further, as the learned Senior counsel for the petitionersubmitted, the Department had no explanation for not examining theMedical Officer. In these circumstances, the findings regardingcharge No.2 also should go. 25.The learned Senior counsel for the petitioner submitsthat in the event of the impugned order, imposing the punishment ofcompulsory retirement is quashed, the petitioner need not be paidwages for the period on the principle of "no work no pay" and thepetitioner is satisfied if the period of non-employment is countedfor fixation of pay and for all other benefits including forcomputing terminal benefits and an affidavit of the petitioner tothat effect is also filed. 26.In these circumstances, the impugned order is quashedand the first respondent is directed to reinstate the petitioner inservice within a period of four weeks from the date of receipt of acopy of this order, without any backwages. However, the period ofnon-employment will be counted for all purposes. 27.With the above observation and direction, the writpetition is partly allowed. No costs. TK Sd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Superintendent of Police Coimbatore District.2.The Deputy Inspector General of Police Coimbatore Range, Coimbatore.+ 1 cc to Government Pleader, SR No.41943+ 1 cc to Mr.T.Ayngaraprabhu, Advocate SR No.42008W.P.NO.5933 OF 2007MRD(CO)SR/9.12.2009