M.Ramanathan v. The Deputy Inspector General of Police Ramanathapuram

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.01.2012CORAMTHE HONOURABLE MR.JUSTICE P.JYOTHIMANIandTHE HONOURABLE MR. JUSTICE M. DURAISWAMYW.A.No.2495 of 2010 &M.P.No. 1 of 2010M.Ramanathan.. Appellant/Petitioner in WP v. 1.The Deputy Inspector General of Police Ramanathapuram2.The Superintendent of Police Ramanathapuram. ... Respondents/Respondents in WPWrit Appeal filed under Clause 15 of Letters Patent againstdated 28.7.2010 and made in W.P.No.48011 of 2006.(O.A.No.4491 of2000) Writ Petition came to be numbered under Article 226 of theconstitution of India by way of transfer of O.A.No.4491 of 2000 fromthe file of Tamilnadu Administrative Tribunal with a prayer to callfor the records of the Superintendent of Police, Ramanathapuram inP.R.No.131 of 1998 dated 30.6.99 and of the D.I.G. of Police,Ramanathapuram in C.No.B1/1729/2000 dated 19.5.2000 and quash thesame and direct the respondent to reinstate the petitioner in servicewith all consequential service and monetary benefits.For Appellant : Mr.P.Jayaraman, S.C. For Mr.G.ElanchezhiyanFor Respondents :Mr.R.Vijayakumar, A.G.P. J U D G E M E N T (Judgement of the Court was delivered by M. DURAISWAMY,J)The above Writ Appeal is directed against the order of thelearned single judge made in W.P.No.48011 of 2006 (T)(O.A.No.4491/2000) dated 28.07.2010. https://hcservices.ecourts.gov.in/hcservices/

2. The writ petitioner is the appellant. The appellantfiled the writ petition in W.P.No.48011 of 2006 to call for therecords of the second respondent in R.P.No.131 of 1998, dated30.6.1999 and of the first respondent in C.NO.B1/1729/2000, dated19.5.2000 and quash the same and direct the respondents to reinstatethe petitioner in service with all consequential service andmonetary benefits.3. According to the appellant, while he was serving asGrade – I Police Constable in Madurai City, he was served with acharge memo in P.R.No.131 of 1998 under Rule 3(b) of the Tamil NaduPolice Subordinate service (Discipline and Appeal) Rules, for thefollowing charges:-(i) Highly improper act in doing money lendingbusiness in Melavasal areas, Madurai during the year 1997and thereby violated Rule 1 of TNSPO Conduct Rules 1964.(ii) Violation of Rules 8 and 12 of TNSPO ConductRules, 1964 in lending money of Rs.11,000/- to oneMuniandi, Madurai Corporation Sanitary Worker which haslead to suspicion that he kidnapped Karuppayee, wife ofMuniandi and their two children on 20.09.1997 for notrepaying the money to him.(iii) Reprehensible conduct in having illicit intimacywith one Karuppayee wife of Muniandi, a Sanitary Worker ofMadurai Corporation which resulted in the ill-treatment ofKaryppayee by her husband and presentation of petition inH.1 Thideernagar Police Station on 04.08.1997 by the saidKaryppayee.The appellant submitted his explanation denying the charges.Having not satisfied with the explanation submitted by the appellant,the disciplinary authority ordered oral enquiry and appointed theEnquiry Officer. The Enquiry Officer examined 5 witnesses andultimately found that the charges against the appellant are notproved. When the Enquiry Officer submitted his report before thedisciplinary authority, the disciplinary authority, differred withthe findings of the Enquiry Officer, issued a memorandum dated19.4.1999 to the appellant informing him that he would take suitabledecision after considering the Enquiry Officer's report and calledupon the appellant to make any representation or submission inwriting to the disciplinary authority within 15 days. Along with thememorandum, the disciplinary authority enclosed a copy of the reportof the Enquiry Officer. Pursuant to the memorandum issued by thedisciplinary authority, the appellant submitted his representationdated 7.5.1999 to the disciplinary authority . The disciplinaryauthority passed a dissenting minute disagreeing with the findings https://hcservices.ecourts.gov.in/hcservices/ of the Enquiry Officer and found all the charges levelled againstthe appellant as proved. Consequently, the disciplinary authorityviz., the second respondent, by order dated 30.6.1999, awarded thepunishment of compulsory retirement to the appellant. 4. Aggrieved over the order dated 20.6.1999, passed by thesecond respondent, the appellant preferred an appeal before the firstrespondent on 7.7.1999. However, the first respondent dismissed theappeal holding that the appeal is time bared. 5. Aggrieved over the order passed by the respondents, theappellant has preferred the writ petition. The learned single Judgealso confirmed the orders of the respondents and dismissed the writpetition. Aggrieved over the order of the learned single Judge,the writ petitioner has field the above appeal.6. Heard Mr.P.Jayaraman,, learned senior counsel appearingon behalf of the appellant and Mr. R.Vijayakumar, learned AdditionalGovernment Pleader appearing on behalf of the respondents.7. On a careful consideration of the materials available onrecord and the submissions made by Mr.P.Jayaraman, learned seniorcounsel appearing on behalf of the appellant and Mr. R.Vijayakumar,learned Additional Government Pleader appearing on behalf of therespondents, it could be seen that the Enquiry Officer after takinginto consideration the oral evidences of 5 witnesses, came to theconclusion that the 3 charges levelled against the appellant were notproved. The Enquiry Officer filed his detailed report before thedisciplinary authority finding that the 3 charges levelled againstthe appellant as not proved. 8. It is settled law that in a writ appeal, filed as againstthe order passed by the respondents pursuant to the report of theEnquiry Officer, this court cannot re-appreciate the evidence. Thedisciplinary authority by his dissenting minute reversed the findingsof the Enquiry Officer. However, prior to reversing the findings ofthe Enquiry Officer, the second respondent has not given any separateshow cause notice to the appellant giving him an opportunity to put-forth his case. The second respondent while enclosing a copy of thereport of the Enquiry Officer, sent a memorandum dated 19.4.1997 tothe appellant asking him to give his representation or submission,which is not sufficient and is also against the settled principles oflaw. The second respondent ought to have given a separate show causenotice calling upon the appellant to submit his representation orsubmission before passing the dissenting minute. Therefore, theorder passed by the second respondent is not valid and is liable tobe set aside. https://hcservices.ecourts.gov.in/hcservices/

9. That apart, on appeal, preferred by the appellant, thefirst respondent dismissed the appeal holding that the appeal is timebarred. 10. Learned senior counsel appearing on behalf of theappellant relied upon the following judgments in support of hissubmissions: (i) 1998 (7) SCC 84 (Punjab National Bank and others v. KunjBhari Misra) wherein the Apex court held that whenever thedisciplinary authority disagrees with the enquiring authority on anyarticle of charge then before it records its findings on suchcharge, it must record its tentative reasons for such disagreementand give to the delinquent officer an opportunity to representbefore it records its findings. The principles of natural justicerequire the authority which has to take a final decision and canimpose a penalty to give an opportunity to the officer charged ofmisconduct to file a representation before the disciplinary authorityrecords its findings on the charges framed against the officer.(ii) 2007(5) CTC 157 (A.Lourdusamy v. Deputy Chief SecurityCommissioner) wherein a Division Bench of this court held that whendirect evidence and circumstantial evidence lacks corroboration, thedepartment should not have imposed capital punishment of dismissalfrom service. (iii) 2010(1) MLJ 977 (S.Setharaman v. Registrar General, HighCourt). In the above judgement, the Division Bench of this courtheld that the word "Corroboration" is not a technical term of art,it means by itself no more than evidence tending to confirm, supportor strengthen other evidence. "Corroboration" is nothing than theevidence which confirms or supports or strengthens other evidence. 11. It is not in dispute that the second respondent passed theorder of compulsory retirement on 30.6.1999. Similarly, it is alsonot in dispute that the appellant has preferred the appeal beforethe first respondent on 4.7.1999. The first respondent, whiledismissing the appeal as time bared, found that the appellant hadobtained a copy of the order dated 30.6.1999 only on 22.7.1999.Even assuming that the appellant had received the copy of the orderon 22.7.1999, there is no dispute that he preferred appeal on4.7.1999. In fact, the appellant had preferred an application inO.A.No.180 of 2000 on the file of Tamil Nadu AdministrativeTribunal, Chennai for a direction to direct the respondents todispose of the appeal dated 4.7.1999. The Tribunal also directedthe first respondent to dispose of the appeal within 10 days.Therefore, it is clear that the appellant has preferred the appeal asearly as on 4.7.1999 as against the order passed by the secondrespondent on 30.6.1999. We are at loss to understand that how the https://hcservices.ecourts.gov.in/hcservices/ first respondent has come to the conclusion that the appeal is timebared. He has not given any reason for coming to the conclusion thatthe appeal is time barred. The appellant having filed the appeal onthe 4th day from date of passing of the order dated 30.6.1999, itcannot be said that the appeal is time barred. The finding of thefirst respondent is erroneous and is liable to be set aside. 12. It is pertinent to note that before the Enquiry Officer thecomplainant was examined as P.W.1, wife of the complainant viz.,Karuppayee was examined as P.W.2, the Inspector of Police wasexamined as P.W.3, the Assistant Commissioner of Police was examinedas P.W.4 and another Assistant Commissioner of Police was examinedas P.W.5. In order to substantiate and prove the charges levelledagainst the appellant, the disciplinary authority ought to haveexamined some other independent witnesses. In the case on hand,excepting the complainant, complainant's wife and the policeofficers, none was examined to corroborate their evidences.13. In the judgement relied upon by the learned senior counselappearing on behalf of the appellant it has been held that in theabsence of corroborative evidence, the department ought not haveimposed capital punishment of dismissal from service. In thepresent case, the Enquiry Officer, after taking into considerationthe evidences of P.W.1 to P.W.5, rightly came to the conclusion thatthe charges levelled against the appellant were not proved. However,the disciplinary authority viz., the second respondent, and theappellate authority viz., the first respondent, erroneously awardedthe punishment of compulsory retirement. The judgements relied uponby the learned senior counsel appearing on behalf of the appellantsquarely applies to the facts and circumstances of the presentcase. 14. The learned single judge while dismissing the writ petitionhas not taken into consideration the non issuance of show causenotice, limitation for filing the appeal and also the absence ofcorroborative evidence to prove the charges levelled against theappellant. As already stated, the order passed by the respondents 1and 2 are liable to be set aside. Accordingly, the same are setaside. Therefore, we are of the view that the order of the learnedsingle judge passed in W.P.No.48011 of 2006 (T) (O.A.No.4491/2000)dated 28.07.2010 is liable to be set aside. Accordingly, the same isset aside.15. Further, it is brought to the notice of this court that theappellant had the benefit of interim order pending writ petition andhe was allowed to continue and pursuant to the order passed in thewrit petition, he continued in the employment till the disposal ofthe writ petition. Further, in the above writ appeal, an order ofstatus quo was granted in favour of the appellant. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ appellant continues in the employment till this date. The learnedsenior counsel appearing for the appellant also submitted that theappellant is due to retire from service by the end of the year 2012.Since we have set aside the order passed by the respondents 1 and 2and allowed the writ petition, the appellant shall continue in theemployment. 16. In the result, the writ appeal is allowed. No costs.Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarrj To1.The Deputy Inspector General of Police Ramanathapuram2.The Superintendent of Police Ramanathapuram.W.A.No.2495 of 2010 GV(CO)SRA(25/01/2012)