Judgment · High Court · 2006
Case at a glance
Outcome
Allowed
The writ petition is allowed
Provisions considered
Key paragraphs
- Para 44. Mr. Venkataramani, learned counsel for the petitionersubmitted that in respect of charge Nos. 1 and 2, the prosecutionhas examined witnesses 1 to 11, 13 and 14. Charge No.1 was thatwitness No.1 Krishnasamy @ Kittu was taken into custody on08.01.1995 by the petitioner and he…
- Para 99. As rightly pointed out by the learned counsel for thepetitioner, the first respondent has relied on the statement of thewitnesses recorded in the preliminary enquiry and came to theconclusion that the charge Nos. 1 and 2 against the petitioner wereproved. It is well settled…
- Para 1010. In view of the above discussion, the orders passed by boththe respondents are liable to be quashed and accordingly they arequashed. The writ petition is allowed. No costs. rshSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Commissioner of Police Coimbatore City2. The Additional Director General of…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06-07-2006CORAM :THE HONOURABLE MR.JUSTICE A. KULASEKARANW.P. No. 32250 of 2004-o-H.C. Lenin.. Petitioner Versus1. The Commissioner of Police Coimbatore City2. The Additional Director General of Police (L & W) Chennai – 600 004.. RespondentsPetition filed under Article 226 of The Constitution of Indiapraying for a Writ of Certiorari as stated therein. For Petitioner :Mr. K. VenkataramaniFor Respondents :Mr. M. Dhandapani Additional Government Pleader ORDERThe prayer in this Writ Petition is for a Writ of Certioraricalling for the records of the respondents in connection with theimpugned order issued by the respondents 1 and 2 in C.No.F1/PR13/2004 dated 17.06.2004 and Rc.No.150713/PR.I (1)/2004 dated05.10.2004 respectively and quash the same.
When the Petitioner was working as Inspector of Police in Andhiyur Police Station between 18.11.1994 and 18.11.1996, on thebasis of two complaints received against him during that period, preliminary enquiry was conducted by the respondents and thereaftercharge memo dated 07.03.1997 was issued under Rule 3 (b) of TamilNadu Police Subordinate Service Rules (Discipline and Appeal) Rules,1995 levelling four charges against the petitioner. The petitionersubmitted his explanation denying the said charges. Thereafter, anenquiry officer was appointed 10.04.1997. The enquiry officerconducted enquiry in which 20 witnesses and 26 exhibits were markedby the prosecution. On consideration of the oral and documentaryevidence, the enquiry officer found that all the four chargesagainst the petitioner were not proved. Whereas, the disciplinaryauthority, the first respondent herein has taken a dissenting view https://hcservices.ecourts.gov.in/hcservices/ only in respect of charge Nos. 1 and 2 are concerned and issuedsecond show cause notice to the petitioner on 15.03.2004 for whichthe petitioner also submitted his reply on 02.04.2004 which wasconsidered and final order was passed on 17.06.2004 imposingpunishment of postponement of next increment of the petitioner fortwo years without cumulative effect. Aggrieved by the said order, the petitioner has preferred an appeal before the second respondenton 14.07.2004, which was also dismissed on 05.10.2004, hence, thepresent writ petition has been filed challenging the said twoorders.
It is necessary to look into the charge Nos. 1 and 2levelled against the petitioner, which runs as follows:-"1. Grave misconduct in having demanded andaccepted Rs.1000/- from Tr. Krishnasamy @ Kittu(35) son of Sengottaiyan, Karumparaikadu, Perumpalayam Post, Nagalur Village of AnthiyurP.S. Limits, Erode District on 09.01.1995 at Anthiyur P.S. limit for not registering any caseagainst him and to leave him free and thusexhibited lack of devotion to duty. 2. Grave misconduct in having demandedRs.1000/- from one Devannan (50) S/o. Lourdusamyof Karumparaikadu, Perumpalayam Post, NagalurVillage on 14.01.1995 at Anthiyur P.S. for leavingwithout any case being booked against him acceptedRs.750/-on that date but registered a case under Prohibition Act against Thiru. Devannan on thatdate itself for paying Rs.750/- only as againstthe demand of Rs.1000/- and thus exhibited lack ofdevotion to duty. "
Mr. Venkataramani, learned counsel for the petitionersubmitted that in respect of charge Nos. 1 and 2, the prosecutionhas examined witnesses 1 to 11, 13 and 14. Charge No.1 was thatwitness No.1 Krishnasamy @ Kittu was taken into custody on08.01.1995 by the petitioner and he was subsequently released onreceipt of a sum of Rs.1,000/- without filing any case against himthat the first witness himself stated that he was not taken intocustody by the petitioner as alleged; that in so far as the avermentthat the petitioner has received a sum of Rs.1000/- from said thewitness No.1 Krishnasamy @ Kittu is concerned, the same is also notproved by the prosecution, which is evident that witness No.2Kuruvayee and witness No.3 Palanisamy in their evidence have notstated that the said payment was paid to the petitioner by witnessNo.1 Krishnasamy @ Kittu. It is further argued that in so far asthe second charge is concerned, witness No.11 Jayamary and witnessNo.13 Anthonisamy have spoken that witness No.10 Devannan was takento police station on 19.01.1995 by the petitioner and he wasreleased on the same day; that witness No.17 Usman Ali, Sub-inspector of Police has deposed about the registration of the caseagainst witness No.10 Devannan in Anthiyur Police Station Crime https://hcservices.ecourts.gov.in/hcservices/ No.17 of 1995 under Section 4 (1) (a) of Tamil Nadu Prohibition Acton 14.01.1995 and he was released on the same day; that witnessNo.13 Anthonisamy has deposed that he has received Rs.750/- from hisrelatives and taken witness No.11 Jayamary to Anthiyur PoliceStation with the money to meet the demand of the petitioner forrelease of witness No.10 Devannan but there is no evidence that thesaid amount was paid to the petitioner.
Summing up the above saidevidence of the witness, the learned counsel for the petitionersubmitted that both the charges against the petitioner were notproved. It is further submitted by the learned counsel for thepetitioner that the respondents in their order stated that standardof proof required in a department enquiry is that of preponderanceof probability and not proof beyond reasonable doubt as in the caseof criminal trial in a court of Law, but in this case, the findingof the respondents is based on no evidence but perverse, hence, thesame is liable to be set aside by invoking Article 226 of the Constitution of India; that the enquiry officer, based on theevidence found that the charges against the petitioner were notproved but the first respondent relied on the statements recorded inpreliminary enquiry and came to an erroneous conclusion that chargeNos. 1 and 2 against the petitioner were proved without noting thefact that the said statements were made behind the back of thepetitioner.
In support of this contention, the learned counsel forthe petitioner relied on the below mentioned decisions:-i)(Central Bank of India Limited vs. Prakash Chand Jain) AIR1969 Supreme Court 983 wherein in Para-8, it was held thus:-8.....It is true that, in numerous cases, it has been held that domestic tribunals, like an Enquiry Officer, are not bound by the technicalrules about evidence contained in the IndianEvidence Act; but it has nowhere been laid downthat even substantive rules, which would form partof principles of natural justice, also can beignored by the domestic tribunals. The principlethat a fact sought to be proved must be supportedby statements made in the presence of the personagainst whom the enquiry is held and thatstatements made behind the back of the personcharged are not to be treated as substantiveevidence, is one of the basic principles whichcannot be ignored on the mere ground that domestictribunals are not bound by the technical rules ofprocedure contained in the Evidence Act...."ii)(Kuldeep Singh vs.
Commissioner of Police and others)(1999) 2 Supreme Court Cases 10 wherein in Para Nos. 33 and 34, itwas held thus:-33. In State of Mysore v. ShivabasappaShivappa Makapur the witness was not examined inthe presence of the delinquent so far as hisexamination-in-chief was concerned and it was his https://hcservices.ecourts.gov.in/hcservices/ previous statement recorded at an earlier stagewhich was brought on record. That statement wasput to the witness who acknowledged having madethat statement. The witness was thereafter offeredfor cross-examination and it was held thatalthough the statement (examination-in-chief) wasnot recorded in the presence of the delinquent, since the witness had been offered for cross-examination after he acknowledged having made theprevious statement, the rules of natural justicewere sufficiently complied with.34. In Kesoram Cotton Mills Ltd. v. Gangadharand State of U.P. v. Om Prakash Gupta the aboveprinciples were reiterated and it was laid downthat if a previous statement of the witness wasintended to be brought on record, it could be doneprovided the witness was offered for cross-examination by the delinquent. "
Per contra, the learned Additional Government Pleaderappearing for the respondents submitted that before commencing theenquiry, the first respondent has conducted preliminary enquiry, examined witnesses including witness Nos. 1 to 11, 13 and 14 andbased on their statements, charges were framed, charge memo wasissued to the petitioner and thereafter, an enquiry officer wasappointed; that in the preliminary enquiry witnesses NO. 1 to 11, 13and 14 have categorically stated that the petitioner herein hastaken witness Nos. 1 and 10 to Anthiyur Police Station on 08.01.1995and 14.01.1995 and after receipt of Rs.1,000/- and Rs.750/-respectively, they were released on bail; that the witness No.2Kuruvayee and witness No.3 Palanisamy have categorically deposedabout the receipt of Rs.1,000/- from witness No.7 Kaliamma andhanded over the same to witness No.1 Krishnasamy @ Kittu, who inturn paid the amount to the petitioner, hence, the first chargeagainst the petitioner was proved beyond reasonable doubt. It isfurther stated that in so far as the second charge is concerned, witness No.10 Devannan was taken to Anthiyur Police Station on14.01.1995 and he was released on the same day after receipt ofRS.750/- which is clear from the evidence of witnesses No.11 and 13;that witness No.11 Jayamary and witness No.13 Anthonisamy havedeposed about the receipt of Rs.750/- from their relatives andwitness No. 13 Anthonisamy went to Anthiyur Police Station and paidthe amount to witness No.10 Devannan, who in turn paid the same tothe petitioner, later, witness No.10 Devannan was released. Thelearned Additional Government Pleader further submitted that it isonly a disciplinary proceedings and the authority need not look intothe evidence in terms of Indian Evidence Act and preponderance ofprobability is sufficient to prove the charges against thepetitioner, which was rightly established; that the disciplinaryauthority has imposed the punishment of postponement of petitioner'snext increment for two years without cumulative effect, which wasalso rightly confirmed by the appellate authority and interferenceof this Court is not warranted. https://hcservices.ecourts.gov.in/hcservices/
This Court carefully considered the argument of thelearned counsel on both sides and perused the record. It isnecessary to mention that to prove Charge Nos. 1 and 2 against thepetitioner, the respondents have relied on the evidence of witnessNo. 1 to 11, 13 and 14, in which the evidence of witness Nos. 2, 3and 7 are relevant to decide as to whether charge No.1 is proved ornot. When we look into the evidence of witness Nos. 2 and 3, it isseen that they borrowed money from witness No.7 and thereafter theysaid to have handed over the same to witness No.1, who is the personmade the complaint against the petitioner. It is seen from theevidence of witness Nos. 2, 3 and 7 that they did not see witnessNo.1 paying the money to the petitioner, besides, there is no oralor documentary evidence available to prove that the said amount waspaid by witness No.1 to the petitioner. Witness No.1 also stated inhis evidence that he was not even detained by the petitioner. Theabove discussion makes it clear that the amount of Rs.1,000/- saidto have been demanded and received by the petitioner as well as theallegation that witness No.1 was illegally detained by thepetitioner were not proved.
In so far as the second charge is concerned, the evidenceof witness No. 10, 11 and 13 are to be considered. Witness No.13Anthonisamy deposed that he collected Rs.750/- from his relativesand took witness No.11 Jayamary to Andhiyur Police Station with themoney to secure the release of witness No.10 Devannan. It is to beremembered that on the complaint given by witness No.10 Devannan, the second charge has been framed against the petitioner. Exceptthe said evidence of witness No.11 and 13, nothing has beenwhispered by them that the petitioner demanded and received theamount of Rs.750/-. Even witness No.10 Devannan has not spokenabout the demand and receipt of Rs.750/- by the petitioner ordetained on 14.01.1995, hence, the second charge levelled againstthe petitioner is also not proved.
It is seen from the records that a case in Crime No.17 of1995 was filed under Section 4 (1) (a) of Tamil Nadu Prohibition Actagainst witness No.10 Devannan on 14.01.1995, of course, he wasreleased on bail on the same day since admittedly the offence is abailable one.
As rightly pointed out by the learned counsel for thepetitioner, the first respondent has relied on the statement of thewitnesses recorded in the preliminary enquiry and came to theconclusion that the charge Nos. 1 and 2 against the petitioner wereproved. It is well settled that any evidence recorded behind theback of the delinquent cannot be relied. The enquiry officer, basedon the oral evidence, which was let in before him, including thestatement recorded in the preliminary enquiry and the documentaryevidence has came to the right conclusion that all the four chargeslevelled against the petitioner were not proved. Whereas, the firstrespondent just relied on the statements recorded in the preliminaryenquiry and held that charge Nos. 1 and 2 were proved. As mentionedabove, the said statements were recorded behind the back of the https://hcservices.ecourts.gov.in/hcservices/ petitioner. The first respondent failed to consider the oral anddocumentary evidence recorded in the enquiry, but came to anerroneous conclusion that charge Nos. 1 and 2 were proved, which isnot based on any valid evidence. The finding of the firstrespondent was also confirmed by the second respondent withoutconsidering it independently.
Operative part
In view of the above discussion, the orders passed by boththe respondents are liable to be quashed and accordingly they arequashed. The writ petition is allowed. No costs. rshSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Commissioner of Police Coimbatore City2. The Additional Director General of Police (L & W) Chennai – 600 0041 cc to Government Pleader, SR.291381 cc to Mr.K.Venkataramani, Advocate, SR.29029pli (co)dv/14.7.06WP No. 32250 of 2004
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The writ petition is allowed
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Indian Evidence Act, 1872.
Which court decided this case, and when?
Madras High Court, on 06 Jul 2006. The bench was A KULASEKARAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.