S.Albert Thangaraj v. Superintendent of Police District Police Office Thoothukudi District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.12.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.325 of 2007S.Albert Thangaraj... PetitionerVersus1.Superintendent of Police District Police Office Thoothukudi District. 2.Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3.Inspector General of Police (Law & Order) South Zone, Madurai – 2.... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.3963 of 2001from the file of Tamil Nadu Administrative Tribunal with a prayer tocall for the records of the first respondent herein passed in his PR39/99 dated 8.10.1999 removing the petitioner from service andconsequential proceedings of the second respondent herein passed inhis C.No.AP 7/C1/2000 dated 17.03.2000 and further consequentialorder of third respondent herein passed in his C. No.A1/1835/2000,183/PR Review/2000 dated 29.05.2001 and quash the same with allconsequential monetary and service benefits. For Petitioner:Mr.Ravi Shanmugamfor M/s.Sudha Ravi Associates For Respondents :Mrs.C.K.VishnupriyaAdditional Government Pleader O R D E RThe Original application in O.A.No.3963 of 2001 before theTamil Nadu Administrative Tribunal is the present writ petition. 2.Heard Mr.Ravi Shanmugam, learned counsel for thepetitioner and Mrs.C.K.Vishnu Priya, learned Additional GovernmentPleader for the respondents. https://hcservices.ecourts.gov.in/hcservices/

3.The petitioner was employed as a Grade – II PoliceConstable in Maniyachi Police Station, Thoothukudi District. Thefirst respondent issued a charge memo dated 12.04.1999 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline andAppeal) Rules, alleging the following charges. "CHARGE: i) Gross neglect of duty in having absentedhimself for beat duty on 7.12.98 at 18.30 hrs. whenhe was drafted for No.I night beat duty along withGRIPC. 1324 Iyyam Pillai on 7.12.98 at 18.00 hrs.ii) Highly reprehensible conduct in having abused oneInbaraj, S/O. Chelliah of Palayamkottai in anintoxicated mood in obscene language at Tirunelveli –Thoothukudi main road @ Moolikulam Mukku infront of aSTD Booth and created nuisance to the public andobstruction to road traffic on 7.12.98 at 21.30 hrs.and thus involved in a criminal case in PalayamkottaiPS. Cr.No. 1442/98, U/s. 4(1)(j) of TNP. Act. and 75MCP Act. iii) Highly reprehensible conduct in having absentedhimself from 7.12.98 without obtaining any leave orpermission from his superior officers." 4.According to the petitioner, the following are the factsthat led to the issuance of the charge memo:The petitioner was issued with a passport by the HeadConstable on 07.12.1998 at 06.00 p.m. for night beat duty atChockanathapuram, Maniyachi Railway Station and Maniyachi Villagealong with Grade–I PC Mr.Iyyam Pillai. The petitioner reported abouthis sickness to Mr.Iyyam Pillai and told him that he wants to go tohis house to bring torch light. It is also stated that he reportedabout his illness to the Head Constable Mr.Selvaraj, who issued thepassport and he wanted to avail the leave. But the Head Constabletold him to inform the Superior Officers if he wanted to take leave.However, the superior officers namely, the Inspector and the Sub-Inspector, were not present in the Police Station. Since he was notwell, he went to a private dispensary at Palayamkottai. OneMr.Inbaraj unnecessarily picked up quarrel with the petitioner. TheInspector of Police Mr.Murugaswamy, belonging to Palayamkottai PoliceStation, instead of apprehending Mr.Inbaraj, registered a caseagainst the petitioner in Crime No.1442/1998 under Section 4(1)(j) ofthe Tamil Nadu Prohibition Act read with Section 75 of Madras CityPolice Act for causing public nuisance. Only in these circumstances,he did not attend the night beat duty on 07.12.1998 and in view ofhis sickness, he did not attend duties and reported to duty only on14.12.1998. https://hcservices.ecourts.gov.in/hcservices/

5.An enquiry was conducted by the Deputy Superintendent ofPolice, Srivaikuntam. 6 witnesses were examined and 13 documents weremarked as exhibits on the side of the department. As far as thefirst and third charge are concerned, admittedly, the petitioner didnot attend the beat duty on 07.12.1998 and also remained absent up to14.12.1998. The defence of the petitioner was that he reported abouthis sickness to both Mr.Iyyam Pillai and also the Head ConstableMr.Selvaraj. Both of them were examined in the enquiry. During thecross examination, both of them admitted that the petitioner informedabout his illness. Mr.Selvaraj deposed that he could not grant himleave and that he should seek leave only from the superiors. It isalso admitted that the superior officers viz., the Inspector and theSub-Inspector of Police were not available in the police station.This piece of evidence in favour of defence was not considered by theenquiring authority while recording the finding of guilt. There isno discussion whatsoever by the enquiring authority regarding thispiece of evidence. Though the above version of the prosecutionwitnesses was produced in the report of the enquiry officer, whilenarrating the facts, the same was not considered while renderingfindings. However, the mere illness would not be a ground for thepetitioner to absent himself from duty from 07.12.1998 to 13.12.1998and to report for duty only on 14.12.1998. The above fact that thepetitioner intimated about his illness would certainly be amitigating factor while considering the imposition of punishment.This relevant piece of evidence is a factor that has to be taken noteof while moulding the relief. 6.As far as the second charge is concerned, there are twowitnesses examined in the enquiry namely, the InspectorMr.Murugaswamy of Palayamkottai Police Station and the doctor. Thedoctor spoke about the drunkenness of the petitioner. The evidenceof doctor reveals that there was liquor smell from the petitioner andhowever, he was not under the influence of liquor. The doctor alsodeposed that the petitioner refused to provide blood and urine formedical examination. But the doctor, during the cross examinationstated that the smell of alcohol might be present if tonic withalcohol is consumed in larger quantity. It is the case of thepetitioner that due to pain, he took larger quantity of medicines andhe cross examined the doctor to substantiate his plea as toconsumption of medicines. Further, the evidence of the Inspector asnarrated by the enquiry officer is as follows:"...... He noticed PC 1671 was talking to one Inbarajthat he is a police and that he cannot wag his tailwith him challenging him and also abused in vilelanguage causing annoyance to the public andhindrance to the traffic....."7.In the above evidence, the Inspector deposed that thepetitioner was only talking to Mr.Inbaraj. Though the Inspector said https://hcservices.ecourts.gov.in/hcservices/ that he abused in vile language, the vile language that was used bythe petitioner was not stated. In the absence of giving the actualwords used by the petitioner, it could not be presumed that it was anabusive language. In this context, the following passage in thedecision of this Court in K.M.RAMASAMY VS. ASSISTANT COMMISSIONER OFLABOUR (CONTROLLING AUTHORITY UNDER THE PAYMENT OF GRATUITY ACT),COIMBATORE reported in 1991 (II) LLN 965 squarely applies to thefacts of this case. "3.Learned counsel for the petitioner submitsthat the impugned order is silent with regard to thealleged abusive words used by the petitioner and thatno opportunity was given to the petitioner to explainand that the impugned order is, therefore, against theprinciples of natural justice, arbitrary and it isillegal. Learned Government Advocate, appearing forthe respondent is unable to point out the actual wordsalleged to have been used by the petitioner in thecourse of the proceedings. Under such circumstances,the impugned order is quashed as it is against theprinciples of natural justice........" Further, the only objectionable language quoted by the Inspector is"ehd; nghyP!; vd;fpl;l thyhl;lhnj" and that is translated by the enquiry officeras he could not wag his tail as he is a police. This could not betermed as an abusive language. More importantly, Mr.Inbaraj was notexamined in the enquiry and not even statement, if any, recorded fromMr.Inbaraj was produced in the enquiry. It is also admitted that thecriminal prosecution was dropped. Hence, the finding of guiltregarding charge No.2 is perverse as there exists no legal evidenceto support the finding. 8.I have come to the conclusion that the charge No.2 wasnot established. Then the charge Nos.1 and 3 relate to absence for avery small period. Hence, I am of the considered view that theextreme penalty of removal cannot be sustained. 9.Taking into account all these factors namely, (1) thepetitioner reported sick to Mr.Iyyam Pillai and to the Head ConstableMr.Selvaraj (2) the superior officers were not present on 07.12.1998to seek leave and (3) non-examination of Mr.Inbaraj in the enquiryand (4) dropping of the criminal prosecution, the extreme penalty ofremoval is set aside.10.In these circumstances, the impugned order imposing thepunishment of removal is set aside. However, the petitioner is notentitled to wages for the period of non-employment. For thedelinquency committed by the petitioner, the respondents are directedto impose any other punishment and the period of non-employment willbe treated for all other purpose except payment of wages. The https://hcservices.ecourts.gov.in/hcservices/ respondents are directed to comply with the directions within aperiod of four months from the date of receipt of a copy of thisorder. 11.The writ petition is allowed on the above terms. Nocosts. To1.Superintendent of Police District Police Office Thoothukudi District. 2.Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3.Inspector General of Police (Law & Order) South Zone, Madurai – 2.1 cc To M/s.Sudha Ravi Associates, Advocate, SR.695991 cc To The Government Pleader, SR.69968W.P.No.325 of 2007RL (CO)SS (11.01.2010)