Sekhar.. v. The Government of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.03.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.32184 OF 2006Sekhar.. Petitioner(Applicant)Vs.1.The Government of Tamil Nadu, rep. by the Secretary, Home Department, Madras-9.2.The Superintendent of Police, Dharmapuri District... Respondents(Respondent) This writ petition has been preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorari to quash the order of the first respondent inproceedings No.21684/Police-VII/97-1, dated 29.4.1997 and ofthe second respondent in proceedings No.PR.83/90,dt.26.11.1991. For Petitioner : Ms.ShanmugapriyaFor Respondents: Mr.P.Gurunathan, GA - - - - ORDERThe petitioner was the Police constable attached to ArmedReserve in Dharmapuri District. The petitioner was involved ina criminal case in Crime No.63/1988 at Pochampalli Policestation. He was charge-sheeted in terms of Section 306 IPC readwith Section 4 of Dowry Prohibition Act, 1961 and Section 304(B) IPC. On being referred to trial by the Sessions Court, thematter was taken up on file as S.C.No.83 of 1989. 2.The charge against the petitioner was that he developedintimacy with one Vasuki and also had sexual intercourse withthe said lady and also demanded Rs.25,000/- or a bullet motorcycle, as a precondition for marrying that lady. The saidVasuki on 6.5.1988 committed suicide by pouring kerosene on herand self immolated herself. A dying declaration from thatVasuki was also taken. https://hcservices.ecourts.gov.in/hcservices/

3.The criminal court, after trial, by a judgment, dated16.9.1991, acquitted the petitioner. In fact, in paragraph 28,the learned Sessions Judge held that even though the petitionermight have demanded dowry and the girl would have become heartbroken and committed suicide and it should have been the reasonfor suicide, that cannot be termed as abetment in terms ofI.P.C. The learned Judge also held that the charges were notproved beyond reasonable doubt and therefore, he was acquitted.4.However, the respondents desired to proceed against thepetitioner departmentally and therefore, framed charges underrule 3(b) of the Tamil Nadu Police Subordinate Service(Discipline and Appeal) Rules, 1955, by a charge memo, dated22.6.1991. The petitioner did not question the charge memo atthe relevant time by stating that the charge framed by thedepartment was identical and therefore, there was no reason toproceed after acquittal by the trial court. The petitioner senthis explanation, denying the charges. He largely relied uponthe evidence recorded in the criminal case as the reason forhis non involvement in the said case. 5.However, an oral enquiry was conducted and in that oralenquiry, the witnesses were examined and some of them were alsothe witnesses before the criminal court. The second respondent,by an order, dated 26.11.1991, came to the conclusion that thefindings rendered by the Enquiry Officer was supportable byevidence. He also disbelieved the defence evidence produced bythe petitioner. It is on that ground, the second respondentcame to the conclusion that the petitioner was responsible forthe suicide of the girl after leading her to believe that hewould marry her. This conduct of the petitioner was unbecomingof a police man and there was no extenuating circumstance totake a lenient view over the conduct of the petitioner. In thatview of the matter, he dismissed the petitioner from service. 6.As against the dismissal, the petitioner preferred anappeal to the first respondent. Since the said appeal was filedon 20.02.1997, the State Government refused to entertain theappeal on the ground that it was filed after a period of fouryears. This was communicated by an order, dated 29.4.1997.Thereafter, the petitioner filed O.A.No.6817 of 1997 before theTamil Nadu Administrative Tribunal.7.On notice from the Tribunal, on behalf of the firstrespondent, a reply affidavit, dated 11.9.1998 was filed. Inview of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.32184 of2006.8.In the reply affidavit, it was stated that the conductof the petitioner was unbecoming of a policeman and that is theground for dismissing the petitioner from service. In https://hcservices.ecourts.gov.in/hcservices/ paragraphs 7 and 9, it was averred as follows:"7. ...Though the criminal case ended inacquittal, in the departmental enquiry, it is madeout from the evidence of P.W.1 and P.W.2 that theapplicant visited the village Santhoor, the date onwhich the girl Vasuki poured Kerosene on her body andcommitted suicide. The preponderance of probabilityis made out from the evidence of witnesses anddocuments which is enough to prove that the applicantwas responsible for the death of the girl Vasuki. Ina court of law, the Honourable court requires foolproof evidence proving the offences of the accusedbeyond doubt for giving conviction, whereas in adepartmental enquiry, the preponderance ofprobability of evidence to prove the charge is enoughto give a punishment, as laid down in various cases....9. ...The order passed by the second respondentin the Punishment Roll against the applicant is aspeaking order with all points covered, and therequest of the applicant to set aside the punishmentis not reasonable. In this case, the applicant thoughnot married the girl Vasuki, lived with her andthrough him, she conceived 3 or 4 times. This showsthat he lived with her though not married to her. Thecontention of the applicant that he was acquitted bythe court of law is correct. But in the departmentalenquiry, it is proved that he was the cause of deathof the girl Vasuki."9.However, Ms.Shanmugapriya, the learned counsel appearingfor the petitioner submitted that since it is a case of enquiryafter acquittal by the criminal court, the respondents shouldnot have proceeded with the enquiry. She also placed relianceupon the judgment of the Supreme Court in Capt.M.Paul Anthonyvs. Bharat Gold Mines Ltd. reported in 1999 (3) SCC 679. Thelearned counsel also relied upon the judgment of the SupremeCourt in G.M.Tank Vs. State of Gujarat and others reported in2006 (5) SCC 446 and placed reliance upon the findings renderedin paragraph 30 of the said judgment. Therefore, in the absenceof any power to conduct an enquiry, the dismissal order passedby the respondent was wholly unjustified. 10.Before dealing with the submissions raised by thepetitioner, it is necessary to refer to Rule 19(2) of the TamilNadu Government Servants' Conduct Rules 1973, which is asfollows:"(2)No Government servant shall involve himselfin any act involving moral turpitude on his partincluding any unlawful act, which may causeembarrassment or which may bring, discredit toGovernment." https://hcservices.ecourts.gov.in/hcservices/

11.In the present case, the question whether an enquirycan be conducted after the acquittal by the Criminal court,came to be considered by the Supreme Court in Ajit Kumar NagVs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia andothers reported in 2005 (7) SCC 764. The Supreme Court in thatcase very clearly held that an acquittal by the criminal courtdoes not preclude the employer from taking an action if it isotherwise permissible. They have also held that an acquittal bythe criminal court would not debar the employer from exercisingthe power in accordance with the rules and regulations inforce. Two proceedings, criminal and departmental, are entirelydifferent and they operate in different field and havedifferent objectives.12.Similarly, the Supreme Court in Deport Manager, A.P.State Road Transport Corporation Vs. Mohd. Yousuf Miya andothers reported in 1997 (2) SCC 699 has held that the purposeof departmental enquiry and of prosecution are two differentand distinct aspects. The crime is an act of commission inviolation of law or of omission of public duty. Thedepartmental enquiry is to maintain discipline in the serviceand efficiency of public service. They have also held that itis always a question of fact to be considered in each casedepending on its own facts and circumstances. 13.In fact, in G.M.Tank case, the Supreme Court did notdisagree with the earlier binding precedents of the SupremeCourt. On the contrary, a reference to paragraph 30 clearlyshows that the Supreme Court had followed the earlierdecisions. In that particular case, it was found out that thecharges, evidence, witnesses and the circumstances are one andthe same. In that particular case, the Government servant wasacquitted on merits. Therefore, the Supreme Court held that itwould be unjust and unfair and rather oppressive to allow thefindings recorded in the departmental proceedings to stand. 14.The case relied on by the petitioner does not advancethe case of the petitioner. On the contrary, as noted above,the criminal court was very narrow in reading the term"abetment" and has held that the petitioner was not guilty ofabetment to bring the case under Section 306 IPC. 15.In a later decision, the Supreme Court in IndianOverseas Bank, Anna Salai and another Vs. P.Ganesan and othersreported in 2008 (1) SCC 650 held that the standard of proof indisciplinary proceedings and that in criminal trial isdifferent. It is also held that what was necessary to benoticed by the High Court was not only the existence ofidentical facts and evidence in matter, it was also required totake into consideration the question as to whether the chargeslevelled against the delinquent officer, both in criminal caseas also in disciplinary proceedings, were same. https://hcservices.ecourts.gov.in/hcservices/

16.In the present case, as found by the second respondent,the conduct of the petitioner was unbecoming of a Governmentservant and he has mis-utilized the confidence reposed by aninnocent girl and thereafter, deceived her, which might haveforced the girl to commit suicide. However, the conduct of theGovernment servant in dealing with the modesty of an innocentgirl was found proved in the oral enquiry and it cannot be saidthat the punishment awarded on the petitioner wasdisproportionate considering the gravity of charge. 17.In the light of the same, this writ petition standsdismissed. No costs. VvkSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary, The Government of Tamil Nadu, Home Department, Madras-9.2.The Superintendent of Police, Dharmapuri District.+ 1 cc to the Government Pleader, SR No.10879+ 1 cc to Mr. V. Raghavachari, Advocate SR No10722BV(CO)SR/2.4.2009W.P.NO.32184 OF 2006