CoramThe Honourable Mr v. Joint Secretary to Government

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 13-4-2007CoramThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.P.No.14075 of 2006(OA.3552/93)M. Vincent...PetitionerVs.1.Joint Secretary to Government,Home (Services.K) Department,Fort St.George, Madras - 9.2.Inspector General of Police,Law and Order, Madras - 4.3.Deputy Inspector General of Police,Vellore Range, Vellore.4.Superintendent of Police,District Police Office, Dharmapuri.5.Deputy Superintendent of Police,Dharmapuri....RespondentsThis writ petition came to be numbered under Article 226 ofConstitution of India, by way of transfer of O.A.Nos.3552 of 1993from the file of Tamil Nadu Administrative Tribunal, with a prayerto quash the removal order passed by the 4th respondent in hisP.R.66/82 dated 10.7.1983 confirmed in his order C.No.2/Appeal/83dated 29.2.1984 and confirmed order of the 3rd respondent in hisC.No.Appeal/8/84 dated 29.10.1984 and further confirmed by thesecond respondent in his Rc.No.66137/PR.III/(1)/88 dated 11.6.1988and the order of the first respondent in his G.O.(3D)No.4 dated9.1.1991 and direct the respondents to reinstate the petitionerinto service with all consequential benefits forthwith.For Petitioner:Mr.S.RaviFor Respondents:Mr.C. Ramesh,Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RPetitioner seeks to quash the removal order passed by the 4threspondent in his PR No.66/82 dated 10.7.1983 confirmed in appealin the order of the third respondent dated 29.2.1984 and the orderof the second respondent dated dated 29.10.1984 and affirmed bythe order of the first respondent dated 11.6.1988 in G.O.(3D)No.4dated 9.1.1991 and direct the respondents to reinstate thepetitioner in service with all consequential benefits.2.The brief facts necessary for disposal of the writpetition are as follows.(a)The petitioner was appointed as Police Constable on13.5.1976. The Deputy Superintendent of Police, Dharmapuri,issued a charge memo to the petitioner in PR No.30/82 allegingthat the petitioner had beaten a prisoner by name Rajamanickam inUthangarai Sub-Jail Guard premises on 17.11.1981 at about 11.00a.m. The second charge was that he had misbehaved in a disorderlymanner in drunken mood and abused the public in front of thearrack shop situate in Uthangarai to Salem main road.(b)Thereafter a revised charge memo was issued to thepetitioner in PR No.66/92 dated 1.12.1982 with four more counts ofcharges. The consolidated cahrges framed against the petitionerare as follows,"(i)High handed action in having beaten trialprisoner Rajamanickam in Uthangarai Sub-Jailguard premises on 17.11.81 at about 11 A.M.mercilessly without reason.(ii)Gross misconduct for having behaved indisorderly manner in drunken mood and abusingthe public in front of the arrack shop situatedon the Uthangarai to Salem main road on05.01.82 and thereby violated conduct rules.(iii) Unbecoming conduct in having consumedarrack and misbehaved with W.PCs.1156 Kalaivaniand 1158 Anbarasi in a riotious and indecentmanner at about 11 P.M. on 01.09.82 in theresidential campus occupied by them and therebyviolated conduct rules.(iv)Gross neglect of duty in absenting himselfwithout leave or permission from 01.09.82 to12.09.82 while serving at Control Room,Krishnagiri.(v)Reprehensible conduct in having reportedback at 18.00 hours on 12.09.82 stating that hewas suffering from Jaundice though he was notactually suffered from such disease. https://hcservices.ecourts.gov.in/hcservices/ (vi)Gross neglect of duty in habituallyabsenting himself without leave or permissionon 12.10.82 from 22.05 hours to 00.05 hours on13.10.82 from 06.00 hours to 19.45 hours on23.10.82 from 20.45 hours to 22.20 hours on23.10.82 and from 05.30 hours on 28.10.82 to10.45 hours on 21.11.82 while serving at ArmedReserve, Dharmapuri."(c)An enquiry was conducted and the Enquiry Officer foundthat all the six charges are proved and enquiry report wassubmitted on 23.7.1983. The Superintendent of Police, withoutgetting remarks from the petitioner with regard to the enquiryreport, on the basis of the Enquiry Officer's finding, removed thepetitioner from service by order dated 10.8.1983. Petitionerfiled appeal before the third respondent. The third respondent,taking note of the fact of non-receipt of the remaks from thepetitioner with regard to the Enquiry Officer's report, set asidethe order of punishment and remitted the matter to theSuperintendent of Police with a direction to issue a fresh showcause notice and after receiving the explanation from thepetitioner directed to pass fresh order.(d)Thereafter, petitioner was issued with a show causenotice and he has submitted his remarks. The Superintendent ofPolice, after considering the same, again passed an order removingthe petitioner by order dated 29.2.1984. Petitioner filed appealbefore the third respondent which was rejected. The revisionpetition filed before the second respondent was also dismissed andthe mercy petition filed before the Government was also rejected.(e)Petitioner challenged the order of removal and theorders of the appellate authority, revisional authority and theorder passed in mercy petition by filing original applicaionbefore the Tribunal, which is now transferred to this Court andnumbered as the above writ petition.(f)The grounds raised in the writ petition are that thecharges were split into various counts and no wound certificatewas exhibited during the oral enquiry. Petitioner furthercontended that he was not on guard duty in Uthangarai Sub-jail, nocase was registered against the petitioner for the allegedincident, no statements were recorded from anyone by the policefrom the scene of occurrence and the evidence of PW-8 stating thatthe said prisoner slipped and fell down while washing his mouthand due to the said fall, he became unconscious was not consideredand the blood and urine test conducted do not confirm consumptionof alcohol by the petitioner. The reliance on Ex.P-38 to provethe charge is unsustainable. The leave applications weresubmitted and medical certificates were accepted and therefore itis not open to the respondents to issue the charges relating tothe petitioner's absence. It is also contended in the affidavitthat the Superintendent of Police being the appointing authority, https://hcservices.ecourts.gov.in/hcservices/ the charge memo cannot be framed by the Deputy Superintendent ofPolice and even after remand by the appellate authority, aftergetting reply from the petitioner, the Superintendent of Policeconfirmed the order of removal. Stating the above grounds,petitioner prayed for quashing the order of removal.3.The respondents filed counter affidavit stating thefollowing contentions.(i)The petitioner was placed under suspension with effectfrom 6.1.1982 for his high handed action in having beaten anunder-trial prisoner named Rajamanickam in Uthangarai Sub-JailGuard premises on 17.11.1981 mercilessly without any reason andbehaved in disorderly manner in drunken mood and abused the publicin front of the arrack shop and thus the petitioner has violatedthe conduct rules. A criminal case was registered under section 4(1)(j) of the TNP Act in crime NO.2 of 1982 by the UthangaraiPolice Station, which was subsequently dropped. Petitioner wasdealt with for the charge under rule 3(b) of the Tamil Nadu PoliceSubordinate Service (Discipline and Appeal) Rules, 1955, for thedelinquencies and his suspension order was revoked on 3.5.1982 andwas posted to Armed Reserve, Dharmapuri. Departmental enquirywas conducted and a punishment was imposed taking note of theseriousness of the charges.(ii)The first punishment of removal from service was imposedand the appellate authority having found that the petitioner wasnot given chance to furnish his remarks on the enquiry officer'sreport, remitted the matter with a direction to issue show causenotice to the petitioner and get his remarks and consider the sameand pass fresh orders pursuant to which show cause notice wasissued on 23.12.1983 and after getting remarks of the petitioneron 20.1.1984, punishment of removal already awarded on 10.8.1983was confirmed on 29.2.1984. Petitioner filed appeal against thepunishment which was rejected, revision petition and mercypetition were also dismissed by the Inspector General of Policeand the Government respectively.(iii) It is also pointed out in the counter affidavit thateven though originally two charges were framed, enquiryproceedings having not commenced the subsequent delinquenciesincluding the allegation of misbehaving with women policeconstables, absenting from duty without leave or permission etc.,a fresh consolidated charge memo was issued in PR.No.66/82,cancelling the earlier charge memo issued in PR.30/82. During theoral enquiry, petitioner was requested by the Enquiry Officer toput questions to the witnesses. However, the petitioner statedthat he will submit his explanation after the oral enquiry wasover. Though remarks were not called for after completion ofenquiry, after remand, remarks were called for and afterconsidering the same order of punishment was passed. https://hcservices.ecourts.gov.in/hcservices/ (iv)Sofaras the leave application submitted on the ground ofjaundice, Dr.R.Rajasekaran, Assistant Surgeon, GovernmentHospital, Krishnagiri, in his letter dated 23.2.1993 certifiedthat the petitioner did not suffer from jaundice and was nothaving any giddiness. As regards non-registration of criminal casefor the alleged beating of remand prisoner Rajamanickam it isstated that the petitioner being a member of the disciplinedforce, he was dealt with departmentally for his high-handednessand no criminal case was registered.(v)Insofar as the chemical examination report about theblood and urine samples, it was due to the lapse of time. Thedoctor PW-14 gave a certificate that the petitioner consumedliquor and he was under its influence. PW-10 S.K.Palanivel whowas an independent witness found the petitioner in a disorderlymanner on drunken state abusing the public. The women PoliceConstables sent their reports about the misbehaviour of thepetitioner to the Inspector General of Police, Control room, thatis to PW-13 and the same was marked as Ex.P-37. Hence the EnquiryOfficer, based on the materials and the evidence adduced, foundthat the charges against the petitioner are proved and he wasimposed with the punishment of removal from service.(vi)Insofar as the contention that the charges were notframed by the Superintendent of Police and by the DeputySuperintendent of Police, who is not competent, it is stated inthe counter affidavit that the cahrges were approved by theSuperintendent of Police and thereafter only it was issued by theDeputy Superintendent of Police. Stating all the above reasons inthe counter affidavit, respondents prayed for dismissal of thewrit petition.4.The learned counsel for the petitioner based on theaverments contained in the affidavit argued that the petitioner'sremoval from service is unsustainable as the charges are notframed in the manner known to law.5.The learned Additional Government Pleader contended thatthe charges are rightly proved as stated in the counter affidavitand the petitioner being a member of the disciplined police force,was dealt with for the proved charges and he was rightly removedfrom the service.6.I have considered the rival submissions made by thelearned counsel for the petitioner as well as the learnedAdditional Government Pleader.7.The point for consideration is whether the six chargeslevelled against the petitioner are proved and the procedures tobe followed for conducting enquiry were followed. https://hcservices.ecourts.gov.in/hcservices/

8.As rightly contended in the counter affidavit the chargememo was issued even though by the Deputy Superintendent ofPolice, it was approved by the Superintendent of Police before thesame was issued. Hence the contention with regard to thejurisdiction in issuing the charge memo is unsustainable.9.The allegations that the petitioner beaten the undertrial prisoner Rajamanickam in Uthangarai Sub-jail guard premiseson 17.11.1981 at 11.00 a.m. mercilessly and he was in drunken moodand abused the public in front of the arrack shop situate atUthangarai to Salem main road on 5.1.1981 and his conduct inmisbehaving with women police constable 1156 Kalaivani and 1158Anbarasi in a riotious and indecent manner after consuming arrackin the residential campus occupied by them are all very seriouscharges and the same are also proved.10.The contention that without cancelling the first chargememo the second charge memo cannot be sustained in view of thespecific averments contained in the counter affidavit that aftercancelling charge momo issued in PR.30/82, fresh charge memo in PR66/82 was issued.11.The petitioner's contention that no wound certificatewas obtained with regard to the injury sustained by the undertrial prisoner Rajamanickam is unsustainable because of the factthat there was no external injury even according to the EnquiryOfficer. No motive is alleged by the petitioner on therespondents for implicating the petitioner in assaulting the saidRajamanickam.12.Chemical Examination report after testing the blood andurine sample of the petitioner did not contain even traces of thesame is due to lapse of time according to the department and theDoctor PW-14 gave a certificate stating that the petitionerconsumed liquor and he was under its influence cannot be brushedaside. Similarly PW-10 who was an independent witness deposedthat the petitioner acted in a disorderly manner and abused thepublic in drunken mood. Therefore the second cahrge is alsoproved.13.The report sent by the Women police Constable in Ex.P-37to the Inspector General of Police, Control room was spoken to byPW-13. The claim of the petitioner that he was suffering fromjaundice and therefore he could not attend duty and applied forleave is also disproved by the department on the basis of theletter issued by Dr.Rajasekaran, Assistant Surgeon, GovernmentHospital, Krishnagiri, through his certifiafte dated 22.2.1993 by https://hcservices.ecourts.gov.in/hcservices/ stating that the petitioner did not suffer from jaundice and hehad any giddiness. Hence the unauthorised absence of thepetitioner is also found proved.14.The non-issuance of notice and not getting remarks aboutthe Enquiry Officer's report by the Superintendent of Policeoriginally, was also rectified after remand by the appellateauthority and therefore the petitioner was rightly imposed thepunishment of dismissal from service. Petitioner being a memberof the disciplined force, is not expected to indulge in theactivities stated in the charge memorandum and the respondentshave rightly taken serious view of the matter and removed him fromthe service. However, only one technical flaw is committed by theSuperintendent of Police, that is, while the appellate authoritysetting aside the order of removal from service, remanded thematter with a direction to issue show cause notice to getpetitioner's explanation/remarks and directed to pass freshorders. The Superintendent of Police instead of passing freshorders, confirmed the earlier order of removal dated 10.8.1983, byorder dated 29.2.1984. The said procedure followed by theSuperintendent of Police is unsustainable. The earlier orderdated 10.8.1983 having been set aside and as no reinstatementorder is passed, the petitioner shall be treated to becontinuously under suspension till the final order is passedsubsequenty. Hence the period from 10.8.1983 to 29.2.1984 shallbe treated as period of suspension and not as the period ofremoval from service. Since the said period is to be treated asperiod of suspension, respondents are bound to pay subsistenceallowance to the petitioner as per rules for the period from10.8.1983 to 29.2.1984. The writ petition is to be allowed tothat extent.15.In the result, the dismissal order passed against thepetitioner shall be treated to be valid only from 29.2.1984 and itis ordered that the petitioner is entitled to get subsistenceallowance from 10.8.1983 to 29.2.1984 and the same shall be paidwithin eight weeks from the date of receipt of copy of this order.To the above extent, the writ petition is partly allowed. Nocosts.vrSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Joint Secretary to Government,Home (Services.K) Department, Fort St.George, Madras - 9.2.The Inspector General of Police, Law and Order,Madras - 4.3.The Deputy Inspector General of Police, Vellore Range,Vellore.4.The Superintendent of Police, District Police Office,Dharmapuri.5.The Deputy Superintendent of Police, Dharmapuri.+ 1 cc to M/s. S. Ravi, Advocate SR No.24476Order in W.P.No.14075 of 2006 AKR(CO)SR/21.4.2007