The Honourable Mr v. The Additional Director General, of Police, Economic Offence Wing, Chennai – 2.2

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 22.01.2009Coram:The Honourable Mr.Justice P.K.MISRAandThe Honourable Mr.Justice K.CHANDRUWrit Petition No.29409 of 2004andW.P.M.P.No.35721 of 2004----------M.P.Mahalingam…. PetitionerVs.1. The Additional Director General, of Police, Economic Offence Wing, Chennai – 2.2. The Inspector General of Police, Economic Offence Wing, Chennai – 2. 3. The Registrar, Tamil Nadu Administrative Tribunal, High Court Complex, Chennai – 104. …. RespondentsPetition filed under Article 226 of the Constitution of Indiapraying for the issue of a writ of certiorarified mandamus to call forthe records of the 3rd respondent Tribunal made in O.A.No.3701 of 2003dt.16.2.2004 confirming the proceedings of respondents 1 and 2 made inP.R.No.72/02 U/R 3(b) dated 22.9.2003 and quash the same andconsequently direct the respondents 1 and 2 to reinstate the petitionerwith all back wages and attendant benefits including promotion,increment, etc.For Petitioner:::: Mr.D.Peter FrancisFor Respondents 1 & 2::: Mr.Neelakantan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R(The Order of the Court was made by P.K.Misra, J)Heard Mr.D.Peter Francis, learned counsel appearing for thepetitioner and Mr.Neelakantan, learned Government Advocate appearing forthe respondents.2. The present writ petition is filed against the order dated16.2.2004 where under the Original Application No.3701 of 2003 filed bythe present petitioner before the State Administrative Tribunal has beendismissed. Such original application was filed for quashing an order ofpunishment of compulsory retirement from service imposed after holding adepartmental enquiry against the present petitioner. The substance ofthe allegation in the departmental proceeding was to the effect thateven though a complaint was filed by a victim girl aged 15 years, no FIRwas registered for a long period and only subsequently when a furthercomplaint was filed by the same victim stating that she was beingthreatened by the alleged culprit and on the intervention of thesuperior officer, the complaint was registered by the presentpetitioner, who at that time was the Inspector of Police incharge ofOthakkadai Police Station. 3. In the departmental proceeding, the plea of the presentpetitioner was to the effect that the complaint was given to the Sub-Inspector of Police by the victim girl, and such complaint was neverbrought to the notice of the present petitioner and as soon as it wasbrought to his notice on 17.05.2001, the complaint was registered asP.R.No.117/01 wherein by combining both the allegations namely,commission of offence under Section 376 IPC and a subsequent threat, aFIR was registered for offences under Sections 376 and 506(ii) IPC. Inthe departmental enquiry, two witnesses were examined namely,Mr.Ganesaperumal, Deputy Superintendent of Police and Mr.Vijaykumar, whowas the subsequent Inspector of Othakadai Police Station. The EnquiryOfficer concluded that there was dereliction of duty, inasmuch as promptsteps were not taken by the present petitioner to register the FIR.Certain other documents including the recommendation of the AssistantDirector of Prosecution that appropriate action should be taken againstthe officers concerned was also marked as Ex.P-4. On the basis of theenquiry report, after giving further opportunity as required, thedisciplinary authority imposed the punishment of compulsory retirement.The appeal filed having been dismissed, the petitioner filed theoriginal application which also came to be dismissed. 4. Learned counsel for the petitioner has contended that in factthere is no evidence on record to indicate that the complaint which wasfiled before the concerned Sub-Inspector of Police was in fact broughtto the notice of the present petitioner at any date prior to the actualdate of registration of such FIR. The Tribunal while considering asimilar contention had referred to the fact that in the departmentalenquiry, the Deputy Superintendent of Police, who conducted the https://hcservices.ecourts.gov.in/hcservices/ preliminary enquiry, and the succeeding Inspector, who were examined asP.Ws 1 and 2, had stated that on the complaint itself there was anendorsement made by the Sub-Inspector that the matter had been placedbefore the concerned Inspector. Apart from this contemporaneousmaterial, the fact remains that the present petitioner was the officerincharge of the police station and it can never be accepted that for aperiod of about one month he had no occasion to visit the police stationand to go through the documents, which were available in the policestation. As a matter of fact, the Tribunal has succinctly observed: - “But the Deputy Superintendent of Police, whoconducted the initial enquiry was examined as P.W.1.The Inspector who succeeded the applicant wasexamined as P.W.2. Both of them have spoken to thefact that in P.R.No.117/01 the Sub-Inspector has notonly acknowledged the receipt of the complaint givenby said Sindhu but also made an endorsement that itis placed before the Inspector of Police, Othakkadaifor necessary action. The applicant who was theInspector on 16.4.2001 and even during subsequentdays, has failed to take action on this and he hasfailed to register a case. The explanation given bythe applicant that this was not brought to thenotice all these days can never be accepted. Aperusal of the General Diary and a perusal of theIndex Register must have alerted the applicant thata complaint of rape has been made and that too by anyoung girl of 15 years old.”In view of the above conclusion, the contention now pressed into serviceby the petitioner cannot be accepted, particularly keeping in view thefact that in the departmental proceeding the allegation is not requiredto be proved beyond all reasonable doubt unlike in a criminal case.Moreover, the finding of the disciplinary authority has already receivedthe judicial approval at the hands of the Tribunal, and the High Courtwhile dealing in such matters is not expected to sit as second court ofappeal to go through the entire materials afresh. In such view of thematter, the main contention raised by the learned counsel for thepetitioner is not acceptable.5. Learned counsel for the petitioner also submitted that evenassuming that there was dereliction of duty, keeping in view the factthat the election was around the corner at the relevant time and thepetitioner had other duties to be discharged, the punishment ofcompulsory retirement is grossly disproportionate. We do not think thatthis submission can never be countenanced keeping in view the fact thatthere was unjustified delay in registering the case where seriousallegations have been made by a minor victim. https://hcservices.ecourts.gov.in/hcservices/

6. Learned counsel for the petitioner then submitted that inspiteof an interim direction to the effect that the pendency of the writpetition will not stand in the way of paying the pensionary benefits, noaction has been taken by the department. Whatever might have been thejustification, since we are inclined to dismiss the writ petition, theauthorities concerned will look into the matter and do the needful inaccordance with law, as expeditiously as possible, preferably within aperiod of three months from the date of receipt of a copy of the order. 7. For the reasons aforesaid, we do not find any merit in the writpetition, which is accordingly dismissed. No costs. Consequently,miscellaneous petition is also dismissed. Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar pv/-Copy to:1. The Additional Director General, of Police, Economic Offence Wing, Chennai – 2.2. The Inspector General of Police, Economic Offence Wing, Chennai – 2. +1cc to Govt. Pleader Sr 3316+1cc to Mr.D.Peter Francis Advocate Sr 3023SA (CO)km/3.2.W.P.No. 29409 of 2004 andW.P.M.P.No. 35721 of 2004