R.D.Rajathi v. The Deputy Inspector of Police, Coimbatore Range, Coimbatore -18 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.12.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.18297 of 2009 andM.P.No.1 of 2009R.D.Rajathi...Petitioner Vs1.The Deputy Inspector of Police, Coimbatore Range, Coimbatore -18.2.The Superintendent of Police, Erode District,Erode.3.S.Angamuthu .. RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of mandamus, directing the first respondent toconsider the representation dated 29.08.2009 for the change of theenquiry officer and also to have the assistance of a lawyer at thetime of domestic enquiry relating to the charge memo inC.No.J1/PR36/Erode/2009 dated 28.04.2009 issued by the firstrespondent. For Petitioner : Mr.S.Kamadevan For Respondents : Mr.R.Neelakandan,G.A.O R D E RHeard both sides.2. The petitioner, who was employed as a Sub-Inspector ofPolice has filed the present writ petition seeking to consider herrepresentation dated 29.08.2009 for a change in the Enquiry Officerand to have the assistance of a lawyer at the time of thedepartmental enquiry relating to the charge memo in P.R.No.36/2009dated 28.04.2009. 3. Private notice was ordered on the writ petition on09.09.2009. Pending the writ petition, this Court granted aninterim stay of further proceedings.4. On notice from this Court, the second respondent had fileda written instruction through the learned Government Advocate. https://hcservices.ecourts.gov.in/hcservices/

5. The case of the petitioner was that a charge memo underRule 3(b) of the Tamil Nadu Police State and Subordinate Service (D& A) Rules dated 29.04.2009 was issued to her. There were twocharges against the petitioner. The first charge was that thepetitioner had an illegal contact with another Sub-Inspector ofPolice who was placed under suspension, thereby creating bad namefor the Department. The second charge was the harassment andassault against one Tmt.Sasikala by demanding cash of Rs.5,00,000/-and a car towards dowry. 6. The petitioner submitted her explanation on 20.07.2009. Theallegation made against the petitioner was also made as the subjectmatter of a criminal case before the Judicial Magistrate Court,Sathyamangalam in C.C.No.194 of 2007. It was stated that thecharges against the petitioner in both the criminal case as well asthe departmental proceedings were one and the same. Therefore, thepetitioner filed a writ petition being W.P.No.15362 of 2009challenging the charge memo especially Charge No.2. This Court didnot entertain the writ petition by stating that the charges cannotbe split into two and directed the disciplinary authority to takenote of the acquittal from the criminal case when considering thematerials gathered during the domestic enquiry. 7. The third respondent who was holding the post of AdditionalSuperintendent of Police was appointed as the Enquiry Officer. Thefirst enquiry date was fixed on 07.08.2009. The petitioner hadrequested permission to engage an Advocate to defend her in theenquiry. The petitioner was given oral permission to engage anAdvocate when the case was posted on 29.08.2009. The petitionerwent with her Advocate one Mr.S.Rajamani for the enquiry. Thewitnesses who were to be examined by the department were alsopresent. 8. The third respondent was not available and they were toldthat he was in the meeting and he had instructed the Head Constableto record the statement from the witnesses. The second witnessLakshmanasamy never gave any statement but he read the typedstatement already prepared and supplied by the third respondent,which was already fed into the computer. Since the witness was notgiving his deposition voluntarily, it was objected to by thecounsel accompanying the petitioner. Hence, the Head Constablecontacted the third respondent over phone and informed him abouttheir objection. 9. It was thereafter the third respondent arrived at thescene. He refused the permission to have the assistance of theAdvocate by stating that the issues involved in the enquiry werenot legal and technical which required the assitance of a Lawyer.After refusal of the permission given to the lawyer, he wanted toproceed with the domestic enquiry which gave the impression thatshe will not get justice at the hands of the third respondent. https://hcservices.ecourts.gov.in/hcservices/ Therefore, she had sent a representation to the first respondentseeking for a change of Enquiry Officer. When there was noresponse from him, she has filed the present writ petition.10. In the written instructions sent by the second respondentSuperintendent of Police, it was stated that the enquiry was alsoproceeded against one Shanmugasundaram in PR.NO.51/2007and the same Enquiry Officer was also conducting the presentenquiry. With reference to the request of engaging an Advocate inP.R.No.36/ 2009, the same may be re-considered if necessary.11. Since no affidavit was forthcoming with reference to thepersonal allegation made against the third respondent who was alsomade as a named party, a direction was issued to the learnedGovernment Advocate to get a statement from the third respondent. 12. The third respondent in his written instructions dated11.11.2009 denied the allegation made by the petitioner. Withreference to recording of the statement of the witnesses, alreadythe third respondent has stated as follows:-"Further the contention of the petitioner that thepreliminary statements of the witnesses have beentyped as if it was recorded in Chief examination isnot correct. The witnesses were allowed to deposefreely without any coercion and recorded what theyadduced during oral enquiry."13. Thereafter, the third respondent filed another writteninstructions dated 02.12.2009, wherein it was stated as follows:"As the enquiry officer has to attend a meetingconducted by the bus operators, the charged officer andthe witnesses were asked to wait till his arrival fromthe meeting. It is further submitted that the enquiryofficer never instructed his writer to record thestatement of witnesses as alleged in the affidavit. Theenquiry officer returned to his office after attendingthe meeting conducted by the bus operators and issued aproceeding denying the engagement of the lawyer todefend the enquiry on behalf of the charged officer.The oral enquiry was subsequently postponed asrequested by the charged officer."14. The petitioner in the meanwhile had obtained a supportingaffidavit from the Advocate S.Rajamani dated 24.11.2009. A copy ofwhich was also furnished to the learned Government Advocate. InParagraph(iii), the Advocate has deposed as follows:-"iii) I submit that when I went along with thepetitioner to participate in the disciplinaryproceedings but the 3rd respondent was not available andit was informed that he went to participate in a https://hcservices.ecourts.gov.in/hcservices/ meeting conducted by the Bus-Operators. Therefore healready instructed the head constable to record thestatement from the witnesses and oneThiru.Lakshmanasamy started read the typed statementalready given to him. But I objected the procedureadopted by the head constable and immediately the saidconstable contacted the 3rd respondent over phone andinformed about my objection and the enquiry wasstopped. Thereafter, the 3rd respondent came to theoffice and issued the order stating the request for theengagement of the lawyer has been rejected and theexamination of witness was deferred and it was informedthat the dat of enquiry will be intimated later."15. Any findings rendered on these allegations and counterallegations will certainly prejudice both sides. Further withreference to the denial of assistance of an Advocate, this Court isnot inclined to grant the said relief since the engagement of anAdvocate in a departmental enquiry is not a matter of right. Butwith reference to change of Enquiry Officer, prima facie theallegation made by the petitioner has to be accepted. The stand ofthe petitioner was also supported by the affidavit of the Advocate,who had no axe to grind against the third respondent.16. In the light of the above, the first respondentDIG,Coimbatore Range is directed to change the Enquriy Officer andappoint another Enquiry Officer to proceed with the enquiry againstthe petitioner in accordance with law. 17. The writ petition is disposed of accordingly. No costs.Consequently, connected miscellaneous petition is closed.svki Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo1.The Deputy Inspector of Police, Coimbatore Range, Coimbatore -18.2.The Superintendent of Police, Erode District, Erode.+ 1 cc to Government Pleader SR.71130+ 1 cc to M/s.S.Kamadeva, Advocate SR.70728W.P.No.18297 of 2009TM(CO)EU 8.01.2009.