T.Jayabalan v. Inspector General of Police (Law and Order) Chennai – 600 004 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.01.2010CORAMTHE HONOURABLE MR. JUSTICE D.HARIPARANTHAMANW.P.No.34189 of 2006and M.P.No.1 of 2008T.Jayabalan ..PetitionerVersus1. Inspector General of Police (Law and Order) Chennai – 600 004.2. Deputy Inspector General of Police Tirunelveli Range, Tirunelveli. 3. Superintendent of Police District Police Office Tirunelveli – 2. ..RespondentsPRAYER : This writ petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of Original Applicationin O.A.No.10131 of 1998 from the file of the Tamil NaduAdministrative Tribunal with a prayer to quash the punishment ofdismissal from service passed by the second respondent herein in hisPR.37/97 (R.O.Tin), P.R.79/97 (DPO Tin) dated 06.05.1998 and theorder of the third respondent herein in his D.O.845/98, P1/PR.79/97dated 06.05.1998 and the consequential order of the first respondentherein in his Rc.No.171279/AP.2(1)/98 dated 10.09.1998 with allconsequential benefits and direct the respondents herein to reinstatethe petitioner in service.For Petitioner: Mr.Ravi Shanmugam For Respondents: Mr.S.Shiva Shanmugam Government Advocate O R D E RThe Original Application in O.A.No.10131 of 1998 before theTamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/

2.The petitioner joined the Police Service as Sub-Inspectorof Police on 02.11.1979. He was promoted as Inspector of Police in1993. He served as Inspector of Police in Nanguneri Circle,Kanyakumari District from 10.04.1996 to 13.08.1996. The Inspector ofPolice, who controlled the Vijayanarayanam Police Station, was onleave. Hence, he was given additional charge of the said policestation during April 1996. 3.When he was holding the additional charge, two personsnamely, Natarajan and Muthukumar, sons of Rathinasamy Nadar, weremurdered on 27.04.1996 at 06.00 p.m, at Keelapandarapuram, whichcomes under the jurisdiction of Vijayanarayanam Police Station, dueto the enmity between two rival groups and both the group belong tothe same village, namely, Keelapandarapuram. A case was registered inCrime No.74/96 in Vijayanarayanam Police Station under Sections 147,148, 341 and 302 IPC against Selvaraj, Ramar, Sudalai and 4 others,who belong to Keelapandarapuram. 4.Following the murders, allegations were made that thehouses of the accused persons namely, Selvaraj, Ramar and Sudalaiwere looted at Keelapandarapuram, for which, a case was registered bythe petitioner in Crime No.206/96 in Vijayanarayanam Police Stationunder Sections 380, 457 and 454 IPC against Gopal and Patturajan,who belong to the opposite party. Both Gopal and Patturajan werearrested on 11.11.1996. The criminal case relating to theft ofhousehold articles of Selvaraj, Ramar and Sudalai was proceededagainst them. 5.The petitioner, who held the additional charge ofVijayanarayanam Police Station, immediately took action byregistering FIR in Crime No.74/96 against Selvaraj, Ramar, Sudalaiand 4 others, who were accused of committing double murder. Theaccused persons absconded and later, they surrendered before thecompetent criminal Court. Their bail applications were stoutlyopposed by the petitioner and they remained in prison for 113 days. 6.In the meantime, the petitioner was transferred toCoastal Security Group, Tuticorin. While he was serving in theCoastal Security Group, Tuticorin, he was served with a charge memodated 04.07.1997 in P.R.No.79/97 under Rule 3(b) of the Tamil NaduPolice Subordinate Service (Discipline and Appeal) Rules 1955. It isalleged in the charge memo that the petitioner along with thecivilians namely, Gopal and Patturajan went to Keelapandarapuramvillage and took away the Beedi leaves, Grinder and T.V. from thehouses of Selvaraj, Ramar and Sudalai, who were the accused in themurder case in Crime No.74/96. However, he received the charge memoonly on 07.11.1997. 7.It is stated that the petitioner was not an accused inCrime No.206/96 relating to the same allegations. https://hcservices.ecourts.gov.in/hcservices/

8.Before serving the charge memo, four witnesses wereexamined as PW1 to PW4 in his absence. Pws.1 to 3 were examined on30.09.1997 and PW4 was examined on 24.10.1997. The examination ofwitnesses took place while the petitioner was on medical leave from09.07.1997 to 21.10.1997. It is also stated that no notice ofenquiry was served on him. Thereafter, on his request, he waspermitted to cross examine those witnesses and PW5 was examined inhis presence and he cross examined PW5. The petitioner let in 3defence witnesses who were all police personnel served inVijayanarayanam Police Station. He produced the General Diary ofVijayanarayanam Police Station through DW1, the then Sub-Inspector ofPolice of the Vijayanarayanam Police Station. The Enquiry Officersubmitted a report dated 25.01.1998 holding that the charge wasproved. Based on the said findings, the second respondent passed anorder dated 06.05.1998 imposing the punishment of dismissal fromservice. The petitioner preferred an appeal dated 25.05.1998 and thesame was rejected by the first respondent on 10.09.1998. 9.The petitioner filed Original Application in O.A.No.10131of 1998 (W.P.No.34189 of 2006) praying to quash the aforesaid ordersdated 06.05.1998 of the second respondent and 10.09.1998 of the firstrespondent and for a consequential direction to the respondents toreinstate him in service with all consequential benefits. 10.Heard Mr.Ravi Shanmugam, learned counsel for thepetitioner and Mr.S.Shiva Shanmugam, learned Government Advocate forthe respondents. The learned Government Advocate has produced theentire file relating to the order of dismissal for perusal. 11.The respondents filed reply affidavit refuting theallegations. It is stated that the petitioner was imposed with thepunishment of dismissal from service based on the enquiry grantinghim all opportunities. It is stated that the message and callletters to attend the oral enquiry on 22.02.1997, 30.09.1997 and24.10.1997 were sent to the petitioner through the DeputySuperintendent of Police, Coastal Security Group, Tuticorin. Thepetitioner failed to turn up for the oral enquiry under some pretextor the other. As he did not turn up for oral enquiry, P.Ws 1,2 and 3were examined on 30.09.1997 and P.W.4 was examined on 24.10.1997. On15.11.1997, he requested for an opportunity to cross examine the PWs1 to 4. Accordingly, he was granted opportunity to cross examinethose witnesses, who were already examined in his absence. They werecross examined on 28.11.1997. Since the charge was grave in nature,the petitioner was dismissed from service based on the findingsrecorded in the enquiry. 12.The learned counsel for the petitioner has madeelaborate submissions. Firstly, he submits that the enquiry was heldin blatant violation of principles of natural justice as PWs 1 to 4were examined in his absence and he was not informed about the https://hcservices.ecourts.gov.in/hcservices/ commencement of the enquiry and the examination of witnesses. It isfurther elaborated that without even serving him the charge memo, theenquiry was commenced in his absence. While he received the chargememo on 07.11.1997, the witnesses were examined on 30.09.1997 and24.10.1997. It is also submitted that while the petitioner was onmedical leave from 09.07.1997 to 21.10.1997, the enquiry wasconducted in his absence without even putting him on notice about theenquiry. 13.Secondly, the learned counsel for the petitioner submitsthat there is no legal evidence to support the finding of guilt.Though 7 witnesses were cited, due to the death of Selvaraj andSudalai, those witnesses were not examined and the statements made bythem were also not produced in the enquiry. The only alleged eyewitnesses were PWs 2, 3 and 4. P.W.4 did not say anything againstthe petitioner and thus the evidence of PWs 2 and 3 were heavilyrelied on by the respondents to inflict the punishment of dismissal.But, according to the learned counsel, both the witnesses were not onpicketing duty at Keelapandarapuram between 27.04.1996 to 30.04.1996and hence their evidence should also be discarded as they were noteye witnesses and they gave false evidence as directed by the higherofficials. To drive home this point, he relied on the General Diaryproduced in the enquiry through the then Sub-Inspector of Police whowas examined as DW1. Since those witnesses were not at all inKeelapandarapuram as per the General Diary, the respondents were notcorrect in proceeding the matter, as if they were eye witnesses. 14.Thirdly, the learned counsel for the petitioner submitsthat when the petitioner was not shown as accused in Crime No.206/96relating to the commission of theft of household articles ofSelvaraj, Ramar and Sudalai, there is no basis for making allegationin the charge memo in P.R.No.79/97 that the petitioner involved inthe commission of theft along with the accused in the said CrimeNo.206/96. It is submitted that based on the alleged confession madeby the accused in the said crime, the charge memo in P.R.No.79/97 wasissued against the petitioner. But the alleged confession statementwas not produced in the enquiry. Based on such an allegedconfession, PW5 conducted a preliminary enquiry on 05.02.1997 afterabout 10 months of the alleged incident and based on such an enquiry,charge memo in P.R.No.79/97 was issued. Therefore, the entireexercise is malafide. It is also submitted that proceeding on thebasis of the alleged confession of an accused itself is bad andillegal. Reliance is placed on the judgment of the Honourable ApexCourt in BHAGAT RAM VS. STATE OF HIMACHAL PRADESH reported in AIR1983 SC 454. 15.On the other hand, relying on the reply affidavit, thelearned Government Advocate seeks to sustain the impugned order ofdismissal. https://hcservices.ecourts.gov.in/hcservices/

16.I have considered the submissions made on either sideand also perused the entire records placed before this Court. 17.It is contended by the learned counsel for thepetitioner that the mere opportunity given by the respondents tocross examine the four witnesses could not cure the defect, whenthose witnesses were admittedly examined in the absence of thepetitioner and when the petitioner was not notified that the enquirywould be held on 30.09.1997 and 24.10.1997. 18.In this regard, I have perused the entire records andalso instructed the learned Government Advocate to look into therecords to see whether notice was given about the enquiry that wouldbe held on 30.09.1997 and 24.10.1997. No notice of enquiry is foundin the entire record. The learned counsel for the petitioner is alsocorrect in his submission that the petitioner was on medical leavefrom 09.07.1997 to 21.10.1997 when the enquiry was conducted on30.09.1997 and 3 witnesses were examined on 30.09.1997.19.The learned Government Advocate justifies the action ofthe respondents in holding enquiry in the absence of petitioner onthe ground that the petitioner refused to receive the charge memostating that he would receive only when the same is served throughproper channel. He has also brought to my notice in the enquiry filerelating to the letter dated 15.09.1997 stating that he would receivethe charge memo when the same is served through proper channel.However, the learned Government Advocate is not able to brought to mynotice any memo directing the petitioner to appear for enquiry on30.09.1997 and 24.10.1997.20.Admittedly, the petitioner was on medical leave from09.07.1997 to 21.10.1997. The reasoning given by the learnedGovernment Advocate that the petitioner refused to receive the chargememo when the same was served in his residence and that therefore,the witnesses were examined in his absence is not acceptable to me.When it is stated in para 4 of the reply affidavit that messages andcall letters to attend the oral enquiry in PR.79/97 on 22.09.1997,30.09.1997 and 24.10.1997 were sent to the applicant through theDeputy Superintendent of Police, Coastal Security Group, Thoothukudy,the same is not found in the entire enquiry file. Therefore, thereis no document to show that the petitioner was notified about theenquiry that would be held on 30.09.1997 and 24.10.1997. Withoutnotifying the enquiry, witnesses were examined in the absence of thepetitioner. The Enquiry Officer, the Superintendent of Police,Tirunelveli did not state anything about the service of notice on thepetitioner. 21.Hence, the opportunity given by the respondents to crossexamine the witnesses could not cure the defect. The examination of https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses in the absence of petitioner without any noticeabout the enquiry would render the entire proceedings vitiated. 22.Both the first and second respondents relied on PWs 2and 3 to come to the conclusion to establish the charge made in thecharge memo. The appellate authority, namely, the first respondentherein in his order dated 10.09.1998 has stated as follows:"3.His above contention are not acceptable. TheEnquiry Officer had to be appointed and the oralenquiry commenced prior to service of the charge memobecause he had refused to receive the charge memo.However, on his subsequent request, he was given theopportunity to cross-examine those witnesses who werealready examined in his absence and as such, there isno injustice caused to him. The motive attributed tothe three accused does not hold good because therecould be no motive for the Police Constables(P.W.s.2&3) and the A.S.P.(P.W.5) to falsely deposeagainst him. The charge stands proved on sufficientand credible evidence........."Hence, heavy reliance is placed on PWs 2 and 3. 23.As far as P.W.1 is concerned, admittedly he was not aneye witness. Further, he was an accused person in the double murdercase. He absconded and his bail was opposed by the petitioner.Admittedly, it is not in dispute that he remained in prison for 113days and only thereafter, he was able to get the bail order. Hence,his evidence could not be given much credence by the appellateauthority. Furthermore, he did not give any details in his evidence.That is, the PW1 himself admitted that he was informed by hisrelatives about the looting of household articles. He also did notgive any details as to the date, time and the particulars of itemsthat were allegedly looted by the petitioner. Hence, the appellateauthority did not rely on the PW1 evidence and the evidence of PW2and PW3 was relied on on the ground that they were posed forpicketing duty at Keelapandarapuram Village when the alleged lootingtook place. But, it is not so as per the records. 24.The General Diary produced by DW1 makes it very clearthat both the PW2 ad PW3 were not posted for picketing duty. As perthe General Diary, P.W.2 was on station duty from 27.04.1996 to07.05.1996. Likewise, PW3 was on election duty from 27.04.1996 to02.05.1996. Further, PW2 admitted during cross examination that hecame for picketing duty to Keelapandarapuram Village only on06.05.1996 and on 27.04.1996, he was posted for election duty in onevillage called Padhaikkam. P.W.3 has stated in chief examinationitself that he was posted for picketing duty after one week of thedouble murder at Keelapandarapuram village. Hence, these are all https://hcservices.ecourts.gov.in/hcservices/ significant admissions by prosecution witness in favour of defence.It is well settled by a catena of decisions that not taking intoaccount the admission made by prosecution witness in favour ofdefence would render the findings perverse.25.The respondents are not correct in relying on theevidence of PW5 who is merely an Investing Officer. Hence, thereliance placed on by the respondents and more particularly, theappellate authority on the evidence of PW5 to hold the charge asproved is not correct.26.The learned counsel for the petitioner has relied on adecision of the Honourable Apex Court in ANIL KUMAR VS. PRESIDINGOFFICER AND OTHERS reported in AIR 1985 SC 1121. Paragraph 5 of thesaid judgment is extracted here-under:"5.We have extracted the charges framed againstthe appellant. We have also pointed out in clearterms the report of the Enquiry Officer. It iswell-settled that a disciplinary enquiry has to be aquasi-judicial enquiry held according to theprinciples of natural justice and the EnquiryOfficer has a duty to act judicially. The EnquiryOfficer did not apply his mind to the evidence.Save setting out the names of the witnesses, he didnot discuss the evidence. He merely recorded hisipse dixit that the charges are proved. He did notassign a single reason why the evidence produced bythe appellant did not appeal to him or wasconsidered not credit-worthy. He did not permit apeep into his mind as to why the evidence producedby the management appealed to him in preference tothe evidence produced by the appellant. An enquiryreport in a quasi-judicial enquiry must show thereasons for the conclusion. It cannot be an ipsedixit of the Enquiry Officer. It has to be aspeaking order in the sense that the conclusion issupported by reasons. This is too well-settled tobe supported by a precedent. In Madhya PradeshIndustries Ltd. v. Union of IndiaMANU/SC/0044/1965,, AIR 1966 SC 671, [1966] 1 SCR466, this Court observed that a speaking order willat best be a reasonable and at its worst be atleasta plausible one. The public should not be deprivedof this only safeguard. Similarly in Mahabir Prasadv. State of Uttar Pradesh MANU/SC/0018/1970,, AIR1970 SC 1302, (1970) 1 SCC 764, [1971] 1 SCR 201,this Court reiterated that satisfactory decision ofa disputed claim may be reached only if it besupported by the most cogent reasons that appealed https://hcservices.ecourts.gov.in/hcservices/ to the authority. It should all the more be sowhere the quasi-judicial enquiry may result indeprivation of livelihood or attach a stigma to thecharacter. In this case the enquiry report is anorder sheet which merely produces the stage throughwhich the enquiry passed. It clearly disclosed atotal non-application of mind and it is this reporton which the General Manager acted in terminatingthe service of the appellant. There could not havebeen a gross case of non-application of mind and itis such an enquiry which has found favour with theLabour Court and the High Court."27.The learned counsel for the petitioner has also reliedon another judgment of the Honourable Apex Court in KULDEEP SINGH VS.COMMISSIONER OF POLICE AND OTHERS reported in 1999 (2) SCC 10. Paras6 to 9 of the said judgment is extracted here-under:-"6.It is no doubt true that the High Courtunder Article 226 or this Court under Article 32would not interfere with the findings recorded atthe departmental enquiry by the disciplinaryauthority or the enquiry officer as a matter ofcourse. The Court cannot sit in appeal over thosefindings and assume the role of the appellateauthority. But this does not mean that in nocircumstance can the Court interfere. The power ofjudicial review available to the High Court as alsoto this Court under the Constitution takes in itsstride the domestic enquiry as well and it caninterfere with the conclusions reached therein ifthere was no evidence to support the findings or thefindings recorded were such as could not have beenreached by an ordinary prudent man or the findingswere perverse or made at the dictates of thesuperior authority. 7.In Nand Kishore Prasad v. State of Bihar itwas held that the disciplinary proceedings before adomestic tribunal are of quasi-judicial characterand, therefore, it is necessary that the Tribunalshould arrive at its conclusions on the basis ofsome evidence, that is to say, such evidence whichand that too, with some degree of definiteness,points to the guilt of the delinquent and does notleave the matter in a suspicious state as meresuspicion cannot take the place of proof even indomestic enquiries. If, therefore, there is noevidence to sustain the charges framed against thedelinquent, he cannot be held to be guilty as in https://hcservices.ecourts.gov.in/hcservices/ that event, the findings recorded by the enquiryofficer would be perverse. 8.The findings recorded in a domestic enquirycan be characterised as perverse if it is shown thatsuch findings are not supported by any evidence onrecord or are not based on the evidence adduced bythe parties or no reasonable person could have cometo those findings on the basis of that evidence.This principle was laid down by this Court in Stateof A.P. v. Rama Rao in which the question waswhether the High Court under Article 226 couldinterfere with the findings recorded at thedepartmental enquiry. This decision was followed inCentral Bank of India Ltd. v. Prakash Chand Jain andBharat Iron Works V. Bhagubhai Balubhai Patel. InRajinder Kumar Kindra v. Delhi Admn. it was laiddown that where the findings of misconduct are basedon no legal evidence and the conclusion is one towhich no reasonable man could come, the findings canbe rejected as perverse. It was also laid down thatwhere a quasi-judicial tribunal records findingsbased on no legal evidence and the findings are itsmere ipse dixit or based on conjectures andsurmises, the enquiry suffers from the additionalinfirmity of non-application of mind and standsvitiated. 9.Normally the High Court and this Court wouldnot interfere with the findings of fact recorded atthe domestic enquiry but if the finding of "guilt"is based on no evidence, it would be a perversefinding and would be amenable to judicial scrutiny."Applying the law laid down in those cases, I am of the consideredview that it is a case of no legal evidence in support of the charge.28.The learned counsel has also relied on the judgment ofthis Court in BRAKES INDIA LTD., VS. ASSISTANT COMMISSIONER OF LABOURreported in 1994 (II) L.L.N. 220 and contends that the documentaryevidence must prevail over any oral evidence. That is, even assumingthat if the oral evidence of PWs 2 and 3 is against him, since thedocument, namely, the General Diary contains about the works thatwere assigned to PWs 2 and 3 on relevant dates namely, 27.04.1996 to30.04.1996, the oral evidence of PWs 2 and 3 should be rejected. 29.The learned counsel for the petitioner is correct in hissubmission that the alleged confession statement of Gopal andPatturajan could not be relied on to prove the charge against thepetitioner. As rightly contended by the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ petitioner, the alleged confession was not produced in enquiry.Further, neither Gopal nor Patturajan was examined in the enquiry andPW5 only spoke about the alleged confession. Even if Gopal orPatturajan was examined, their evidence could not be relied on, asthey were co-accused and their evidence should not be given credencein the light of the observations of the Honourable Apex Court inBHAGAT RAM VS. STATE OF HIMACHAL PRADESH reported in AIR 1983 SC 454.Para 9 of the said judgment is extracted here-under in this regard. "9.The next question is whether there wasnegligence in performance of duty. In thisconnection, the Inquiry Officer has observed thatthe duty of a Forest Guard is to see that the treesare felled after they are properly hammer-marked.He has further held that there is no exception tothis rule and it applies in all cases whether thetrees stand on one's private land or on Governmentforest land. The Inquiry Officer further found thatthe appellant did not take action to stop felling oftrees on which hammer mark was not affixed. TheInquiry Officer, therefore, concluded that theappellant failed in performance of his duty and heconnived with the offender in the illicit felling oftrees. The defence of the appellant was that he hadsought the advice of his Block Officer Shri DuniChand co-delinquent whether trees standing onprivate land could be felled without permission andhe was informed by Shri Duni Chand that spruce treesstanding in one's private land can be felled withoutpermission. The Inquiry Officer rejected the defencebut he reached this conclusion by a method whichleaves much to be desired. A joint Inquiry wasproceeding against the appellant and Shri DuniChand. After 5 witnesses were examined on behalf ofthe department, the Inquiry Officer separated theInquiry at the request of the Presenting Officer andthen called Shri Duni Chand as a witness against theappellant. In his evidence, Duni Chand adopted theposition that no such advice was sought nor was anysuch advice tendered. There is word of Duni Chandagainst word of the appellant and Duni Chand wastrying to clear himself of the charges. We are notapplying standard of strict proof in a criminalcase, but in that acts herein narrated anyonedischarging quasi-judicial function would haveconsiderable hesitation in accepting the statementof Shri Duni Chand. The Inquiry Officer furtherobserved that at any rate even if such an advice wassought and tendered, no tree can be felled unlesshammer mark is affixed on it and the trees felled https://hcservices.ecourts.gov.in/hcservices/ were not bearing the hammer mark and therefore,there is negligence in performance of his duty."30.Therefore, I have no hesitation to come to theconclusion that there is no evidence much less legal evidence tosustain the charge. The last submission made by the learned counselfor the petitioner also merits acceptance. The respondents are notable to explain why the petitioner was not made an accused in thecriminal case which was instituted against Gopal and Patturajan onthe same set of allegations in Crime No.206/96.The respondents arenot able to explain why the alleged confession statement of Gopal andPatturajan was not produced in the enquiry. It is also not explainedwhy there is a delay of more than 10 months in entertaining acomplaint and issuing a charge memo after one year. The learnedcounsel for the petitioner is well founded in his submissions thatthe entire action is malafide and for some extraneous reasons. 31.For the reasons stated above, the impugned orders areliable to be quashed. The respondents are directed to reinstate thepetitioner in service with all other consequential benefits, within aperiod of four weeks from the date of receipt of a copy of thisorder. 32.The writ petition is allowed on the above terms. Nocosts. Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTKTo1. The Inspector General of Police, (Law and Order), Chennai – 600 004.2. The Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli. 3. The Superintendent of Police, District Police Office, Tirunelveli – 2.+ 1 c.c. to Mr. S. Ravi, Advocate. S.R.No.2307.+ 1 c.c. to The Government Pleader. S.R.No.2683.W.P.No.34189 of 2006BKY (CO)GSK 20.01.2010.