N.George v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 04-10-2007Coram :The Hon’ble Mr. Justice ELIPE DHARMA RAOandThe Hon’ble Mr. Justice S.TAMILVANANWrit Petition No.36769 of 2004N.George … Petitionervs.1. The State of Tamil Nadu Rep. by The Inspector General of Police Armed Police, Kilpauk, Chennai – 10.2. The Deputy Inspector General of Police Armed Force, Kilpauk, Chennai – 10.3. The Commandant Tamil Nadu Special Range, III Bn, New Delhi – 64.4. The Registrar Tamil Nadu Administrative Tribunal, High Court Campus, Chennai. .. RespondentsWrit Petition, seeking certiorarified mandamus is filed by the petitioner,under Article 226 of the Constitution of India, to call for the recordsrelating to the order passed in O.A.No.10428 of 1998, dated 06.03.2003 onthe file of the fourth respondent and quash the same in part, so far as itfailed to pay the back wages to the petitioner and to direct therespondent to pay the back wages from the date of termination till thedate of his reinstatement in service.For Petitioner : Mr.N.G.R.Prasad for Ms.Devi Shankar For Respondents : Mr.K.Balakrishnan, AGP https://hcservices.ecourts.gov.in/hcservices/ O R D E RS.TAMILVANAN, JThis writ petition has been directed against the order dated06.03.2003 made in O.A.No.10428 of 1998 by the Tamil Nadu AdministrativeTribunal, Chennai, whereby the application has been partly allowed,setting aside the impugned order therein with the direction to reinstatethe petitioner in service, depriving of back wages.2. The brief facts of the case are as follows :It is an admitted fact that the petitioner was recruited asPolice Constable in the Tamil Nadu Special Force Battalion III in the year1994 and sent on deputation to New Delhi, for doing guard duty at DiharCentral Prison in January 1997. On 25.09.1997, the petitioner was onsecurity duty in Jail No.5 at Dihar prison between 9.00 p.m and 2.00 a.m,during night hours. After finishing his duty at about 2.00 a.m, while hewas returning to his barracks, according to him, due to stomach pain hewent to an adjacent place, where water facility was available to attendcalls of nature. While so, he heard some noise inside the quarters and afew persons running towards him, caught hold of him and also shouting athim in Hindi. The petitioner could not understand what was going on due tolanguage problem. He was subsequently released from the crowd at theinstance of another official. According to the petitioner, the Inspectortherein told him that the matter would be closed, if he would spend somemoney, which was refused by the petitioner. Then, he was issued with thecharge memo, under Rule 3 (b) of TNPSS (D&A) Rules and also suspended fromservice, with effect from 15.10.1997. Departmental enquiry was held by theAssistant Commissioner of the Battalion, during the course of which, theInspector of Police, Sub Inspector of Police of ‘C’ Company and otherswere examined. In the enquiry, the petitioner herein gave his explanationthat while he was returning to his barracks after attending duty, due tohis stomach pain, he went to answer nature's call, for which he had chosenan open place, which happened to be nearby the newly built multi storiedbuilding, where women workers were also dwelling and he was mistakenlycaught hold of by the persons therein, under a wrong assumption, withoutknowing the facts. The enquiry officer held his findings against thepetitioner and the appeal preferred by him was also dismissed by theDeputy Inspector General of Police, Armed Reserve, Chennai. Aggrieved bywhich, the petitioner preferred Original Application before Tamil NaduAdministrative Tribunal, Chennai.3. The Administrative Tribunal, after considering the evidence andother materials available on record, has held that the petitioner was notmotivated in indulging in any violent or illegal activity and admittedly,he has not molested anybody. The Tribunal found that the service record ofthe petitioner had been very good, which is also not in dispute. The https://hcservices.ecourts.gov.in/hcservices/ Tribunal has further held that the petitioner has not been punished forany misconduct in the past 5 years, while he was in service andaccordingly, held the punishment of removal of petitioner from service ashighly disproportionate and too harsh. Accordingly, the punishment imposedon the petitioner by the authorities has been set aside by the Tribunalwith a direction to reinstate him without back wages. Aggrieved by thesaid order, the petitioner / applicant has preferred this writ petition.4. Mr.N.G.R.Prasad, learned counsel appearing for the petitionerwould contend that it has been admitted by the respondents that there areno bad antecedents against the petitioner in his service and he hadunblemished records to his credit. Similarly, it is not in dispute that hehad language problem, as he was not conversant with Hindi. On 25.09.1997,admittedly, he was on security duty in Dihar Jail between 9.00 p.m and2.00 a.m during night hours. When the petitioner was returning, after hisduty at 2.00 a.m, as he was suffering from stomach pain, he went to aplace behind the Dihar Jail for attending nature's call, without anymotive and also not knowing about the women workers sleeping there in thebuilding. While so, he was caught hold of by some male workers and hecould not understand what they were speaking in their language. As held bythe Tribunal, during the enquiry, the petitioner has clearly explained theabove facts. According to the learned counsel for the petitioner, in theabove said circumstances, there was no necessity for the petitioner to goto the place, except for the reason stated by him. The contestingrespondents have also not made any allegation of molestation or any otherspecific allegation against the petitioner, as found by the Tribunal. Inorder to establish the charges, no women worker available at the place ofoccurrence was examined as witness and therefore, according to the learnedcounsel, the petitioner, an innocent police constable has been put tohardship and suffering due to his language problem and subsequentlyremoved from service.5. The Administrative Tribunal, considering the evidence available onrecord and also the arguments advanced on both sides, had held that thereare no bad antecedents against the petitioner and his previous conduct wasvery good as per his service record for the past 5 years and that he washailing from a good family. It is also not in dispute that there is nowrit petition filed by the respondents 1 to 3 against the order of theTribunal. Therefore, the only question to be decided is whether thepetitioner is entitled to back wages, as claimed by him in the writpetition.6. It is clear that the petitioner would be entitled to back wages,if he is totally an innocent person and subjected to harassment of removalfrom service without any legally acceptable evidence. It cannot bedisputed that utmost discipline should be maintained by everyone,especially the persons who are in disciplined service, but no one can bepunished without legally acceptable evidence, since rule of law isparamount in a civilized society. https://hcservices.ecourts.gov.in/hcservices/

7. As per the charge, on 25.09.1997 at about 2.30 in the earlymorning, the petitioner went to the dwelling place of the building workers(second floor) located on the rear side of prison number 5, with anintention to do some misbehaviour.8. As per the enquiry proceedings, the Building Engineer told thatthe petitioner had made an attempt to enter into the premises of thebuilding and the same was stated by him to the Inspector of ‘C’ Company,III Battalion, who was examined as P.W.1. Sub Inspector, Manimaran,Havildar 1439 , Murugan were also examined as P.Ws.2 and 3 respectively.Thiru.Azand Sha, Dihar Jail Building Engineer was examined as P.W.4, hasstated in his evidence before the enquiry officer that on 25.09.1997 atabout 2.30 a.m, one person of TSP made an attempt to trespass into thenewly constructed building, where the building workers were staying andthat person was caught hold of by the building workers with the help ofCSID staff. He has further stated that he did not know the reason forwhich the said constable 320 George ( petitioner herein) trespassed intothe house.9. As contended by the learned counsel for the petitioner, though thewitnesses have stated that number of women workers were dwelling in thebuilding, none of the women worker was examined to prove the allegedoccurrence, for the reasons best known to the authorities. Further, as perthe evidence, even male workers were also dwelling there, but none of themwere examined as witness. Admittedly, no complaint by any women worker wasgiven. According to the petitioner, only a false complaint was givenagainst him and further, in his written explanation, he has stated,neither the Engineer nor any other person had given any complaint to theSub Inspector of ‘C’ company, who brought him back to the company, but theInspector and another made a demand to pay Rs.3,500/- from him to solvethe problem, but the petitioner refused to pay the same saying that he hadnot committed any wrong so as to pay the amount demanded by them.10. As per the enquiry proceedings, the very suspicious circumstanceis that when a person entered into the second floor, he stepped down theleg of a boy, aged 10 years by name Paplu, who shouted ‘Chori, Chori’. Itis not in dispute that 'Chor' means, Thief and ‘Chori’ means femininegender of Thief and therefore, the 10 year old boy Paplu could haveidentified any women there and shouted as Chori, Chori, but thepetitioner, who was not conversant with the local language was caught holdof, without any complaint from any woman worker and without examining thewomen worker or other persons, who were dwelling in the building, andthus, he was put to hardship and suffering. It is also pertinent to notethat the petitioner was not caught hold of at the first or second floor ofthe building. It could be seen that out of the four witnesses, no one wasan eye witness for the occurrence. https://hcservices.ecourts.gov.in/hcservices/

11. The enquiry being held against the petitioner was violative ofprinciples of natural justice. Further, as per the statement given byAzand Sha recorded by Inspector of ‘C’ Company, the petitioner had madeonly an attempt to trespass, but he would state further that he did notknow the reason for which he tried to trespass into the building.Admittedly, no criminal case was filed against the petitioner on the basisof the alleged occurrence. As the petitioner has raised serious allegationagainst the Inspector that he had demanded a sum of Rs.3,500/- to settlethe matter, independent witnesses who were available at the place ofoccurrence could have been examined.12. In the decision Nand Kishore vs. State of Bihar, reported in AIR1978 SC 1277, the Hon’ble Supreme Court has clearly ruled that suspicioncannot be allowed to take the place of proof even in domestic enquiry. 13. In the instant case, it is not in dispute that the petitioner hadbeen doing guard duty at Dihar Central prison as a member of the TamilNadu Special Police. As per the finding of the Tribunal, there was a newlyconstructed building, on the rear side of prison number 5, whereconstruction workers were staying. As per the evidence available onrecord, even male workers were also staying there. The defence plea raisedby the petitioner is that he went only to attend nature's call at the rearside, but on seeing him three persons came and caught hold of him. While,he was enquired in the language not known to him, he replied in his mothertongue Tamil. Only on suspicion, he was caught hold of and detained,though he has not committed any illegal act.14. On the above circumstances, it is clear that only on meresuspicion, it has been incorporated in the charges that the petitioner hadan intention to do some misbehaviour and hence, trespassed in to thebuilding. We are of the view that in the absence of any complaint by anywoman worker or any other workers dwelling at the place, it could beconstrued that the charge had been framed without any basic materials.15. In the light of the ruling of the Hon’ble Apex Court referredabove and on the materials and evidence available on record, we are of theconsidered view that only on suspicion, the petitioner had been put toharassment, in spite of his specific allegation against the Inspector thathe had demanded money for amicably settling the matter. Therefore, we areinclined to hold that in the domestic enquiry, violating the principles ofnatural justice, the conclusion against the petitioner has been arrivedat, without any legally acceptable evidence and materials and therefore,to meet the ends of justice, we find it proper and reasonable to allow thewrit petition. https://hcservices.ecourts.gov.in/hcservices/

16. In the result, this writ petition is allowed. However, thereis no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsvnTo1. The Inspector General of Police State of Tamil Nadu Armed Police, Kilpauk, Chennai – 10.2. The Deputy Inspector General of Police Armed Force, Kilpauk, Chennai – 10.3. The Commandant Tamil Nadu Special Range, III Bn, New Delhi – 64.1 cc To Mr.K.Shankar, Advocate, SR.61401.1 cc To The Government Pleader, SR.61812.W.P.No.36769 of 2004 RSN(CO)RVL 15.10.2007