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C.GANAPATHY versus DGP

High Court of Madras

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C.Ganapathy v. DGP - WP.40550 of 2005 [2007] RD-TN 2796 (27 August 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 27-08-2007

CORAM :

THE HONOURABLE MR.JUSTICE A. KULASEKARAN

W.P. No. 40550 of 2005

-o-

C. Ganapathy .. Petitioner Versus

1. The Director General of Police

Tamil Nadu

Chennai  600 004

2. The Additional Director General

of Police (Law & Order)

Tamil Nadu

Chennai  600 004

3. The Deputy Inspector General of

of Police

Coimbatore Range

Coimbatore  18

4. The Superintendent of Police

District Police Office

Coimbatore  18 .. Respondents

Petition filed under Article 226 of The Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. Ravi

For Respondents: : Mr. S. Gopinathan Additional Government Pleader ORDER



The prayer in this writ petition is for a Writ of Certiorarified Mandamus to call for the records relating to the Order of the third respondent herein passed in his Rc.No.D1/PR/07/2004 dated 02.09.2004 imposing a punishment of removal from service and the consequential order passed by the second respondent herein in his proceedings Rc.No.203219/AP I (1)/2004 dated 25.07.2005 rejecting the appeal petition of the petitioner and further consequential order passed by the first respondent herein in his Rc.No.178032/AP I (1)/2005 dated 01.11.2005 insofar as declaring the petitioner unfit for appointment as Sub-Inspector of Police and quash the same and direct the respondents herein to reappoint the petitioner as Sub-Inspector of Police for the year 1997-98 with all consequential monetary and service benefits.

2. The petitioner was appointed as Grade-II Constable on 25.05.1998. Under the Departmental Quota on 20 reservation, he applied for selection as Sub-Inspector of Police for the year 1997-1998. He was directed to appear for an interview on 19.12.1998. On his coming out successful in the interview, he was selected on 16.02.1999 to the Post of Sub-Inspector of Police subject to medical verification and police verification. In the meantime, the petitioner submitted verification roll dated 08.02.1999 in which he has categorically stated that he has not involved in any civil or criminal cases. After medical verification, he was appointed as Sub-Inspector of Police with effect from 16.04.1999. While things are such, on 11.11.2002, the third respondent issued charge memo, which reads as follows:- "Highly reprehensible and ulterior act on the part of a Government Servant in having suppressed his involvement on 17.08.1997 in a criminal case dealt in Perundurai Police Station (Erode District) Cr.No.461/97 under Sections 147 and 323 IPC at the time of (i.e., on 08.02.1999) submitting his candidature for verification for selection as Sub-Inspector of Police under departmental quota and got selection as Sub-Inspector of Police and thereby desecrated the declaration signed by him in the verification roll." Thereafter, an enquiry officer was appointed, who after examination of two witnesses on the side of the prosecution and four documents found the charge against the petitioner was not proved and submitted his report on 17.09.2003. On receipt of the report, the third respondent herein, remanded the report back to the enquiry officer to consider afresh along with other documents. Accordingly, the enquiry officer considered the other two documents and came to a conclusion that the charge against the petitioner was proved. Thereafter, the third respondent has issued second show cause notice calling upon the petitioner to submit his explanation if any. It is stated that the petitioner also submitted his explanation denying the charges. However, the third respondent, not satisfied with explanation, came to a conclusion that the charge against the petitioner is proved and imposed the punishment of removal from service on 02.09.2004. Aggrieved by the said order of removal from service, the petitioner has filed an appeal before the second respondent herein, who has confirmed the finding of the enquiry officer and the third respondent and dismissed it on 25.07.2005. The petitioner has filed Review Petition dated 11.08.2005 before the first respondent, who has reduced the punishment to that of reappointment as Grade-II Police Constable. Hence, challenging these orders, the present writ petition is filed.

3. The learned counsel for the petitioner submitted that the respondent has issued a charge memo based on the F.I.R. Dated 21.08.1997 on the file of the Inspector of Police, Perundurai Police Station in Cr.No.461/97 for the offences under Sections 147 and 323 IPC against the petitioner and others. In the FIR, the petitioner's name is not found mentioned. The petitioner is not even aware of the case registered against him. The enquiry officer originally submitted his report on 17.09.2003 as charge not proved, while so, it is not open to the third respondent to remand back the report for re-consideration by the enquiry officer, who indeed without even affording an opportunity to the petitioner, considered certain additional documents marked by the department and came to an erroneous conclusion that the charges against the petitioner are proved and submitted his report on 18.01.2004. It is further submitted by the learned counsel when the enquiry officer appointed by the third respondent filed his report and if such a report is not satisfactory, privilege is given to the disciplinary authority to take dissenting view from that of the enquiry officer and can either consider or refuse the case of the petitioner, hence the said remand is not legal. Further, while considering the additional documents stated to have been filed at the instance of the department, it is the bounden duty of the enquiry officer to give an opportunity to the petitioner but the same was not granted. The petitioner was not aware of the criminal case filed against him on 21.08.1997 since his name was not found mentioned in the FIR. In view of the same, the petitioner while submitting his verification roll has mentioned that no civil or criminal case is pending against him and the same cannot be said to be suppression of material facts. It is also brought to the notice of this Court by the learned counsel for the petitioner that in the FIR dated 21.08.1997 it was found mentioned that one Sub-Inspector of Police and others have involved, subsequently, the concerned Sub-Inspector of Police was issued with a charge memo, which was enquired and originally the punishment of censure was awarded, later, the same was modified by the government into one of stoppage of increment for one year without cumulative effect. Though the petitioner's name was not found mentioned in the FIR, he was awarded with capital punishment. The learned counsel for the petitioner relied on a judgment of a Division Bench of this Court reported in (Virabhagu vs. The Union of India) 2005 (1) CTC 239 wherein the Division Bench of this Court relying on the Apex Court's ruling set aside the memo. In case, if the petitioner is convicted and the same was suppressed, then imposing punishment is justified. Whereas, in the FIR dated 21.08.1997 relied on by the department to say that the petitioner stated to have been involved in a criminal case, his name was not even found mentioned and the petitioner was not even aware a case was registered against him, hence, the punishment, that too, removal from service is unsustainable.

4. Mr. Gopinathan, learned Additional Government Pleader appearing for the respondents submitted that a case was registered against the petitioner in Cr.No.461 of 1997 dated 21.08.1997, suppressing the same, he has submitted his verification roll dated 08.02.1999 whereas, it is categorically found mentioned that no criminal or civil case was pending against him. Therefore, in case of any false declaration, it is open to the respondents to impose punishment of removal from service without any enquiry, however, the third respondent has appointed an enquiry officer, who committed certain procedural mistakes and not considered certain documents and gave a report dated 17.09.2003 that the charge against the petitioner was not proved, hence, the report was rightly remanded back to the enquiry officer with a direction to re-consider the report along with certain additional documents which were considered by the enquiry officer after serving the copies of the said documents on the petitioner. Only thereafter, the enquiry officer came to the conclusion that the charge against the petitioner was proved and filed his report on 18.01.2004. Considering the enquiry report and after complying with the formalities, the disciplinary authority awarded the punishment of removal from service, on appeal by the petitioner, the second respondent also considered and rejected it. The review filed by the petitioner was considered by the first respondent, who reduced the punishment and treated the petitioner as newly appointed Grade-II Police Constable and prayed for dismissal of the writ petition.

5. This Court carefully considered the argument of the counsel for both sides and perused the materials placed.

6. When the petitioner was working as Grade-II Police constable, he attended the interview for appointment to the post of Sub-Inspector of Police. The petitioner also submitted his verification roll as required by the respondents on 08.02.1999, wherein he has categorically stated that there is no civil or criminal case pending against him. Based on the same, the petitioner was appointed as Sub-Inspector of Police. Later, the third respondent came to know that the petitioner involved in an occurrence dated 21.08.1997 and a case was registered under Section 174 and 323 IPC on the file of Perundurai Police Station, Erode District. According to the petitioner, he was not aware of the said incident and even in the FIR his name is not mentioned. It is not in dispute that in the said FIR, it is stated that one S.I. Of police and others assaulted the complainant. It is alleged by the third respondent that pursuant to the registration of case, a Revenue Divisional Officer enquiry was ordered, test identification parade was conducted in which the petitioner was identified by the complainant. It is replied by the petitioner that under Police Standing Order 145, the Revenue Divisional Officer was appointed to conduct enquiry, who is required to give specific finding as to whether there is evidence available against the police officer involved, the report has to be forwarded to the Collector, who in turn forward it to the Government and the Government has to issue order directing the Revenue Divisional Officer to launch criminal prosecution. At that stage alone, the Revenue Divisional Officer has to file his report before the concerned Court, which would then take cognisance of the case. It is stated by the petitioner that in this case, the Revenue Divisional Officer has forwarded his report on 07.08.1999 to the District Collector recommending departmental action, hence, on the relevant date i.e., on 08.02.1999 when verification roll was signed and submitted by the petitioner he was not aware what would be the outcome of the report of the revenue divisional officer in the back drop that his name was not found mentioned in the FIR. The said fact was not specifically denied in the counter filed by the respondents, however, it is simply alleged that the petitioner is fully aware of the said criminal case.

7. The other plea of the petitioner is that when once the enquiry officer has submitted his report, the disciplinary authority, while dissenting with the findings of the enquiry officer, an opportunity has to be given to the delinquent to submit his explanation and thereafter proceed to pass orders on it, whereas, in this case, the disciplinary authority remanded the matter back to the enquiry officer to consider the additional documents and pass fresh orders, which is invalid. The respondents in the counter stated that the third respondent remanded the matter to the enquiry officer for two reasons i.e., (i) the enquiry officer has not issued proceedings for adding A. Jaganathan, Assistant, RDO's Office, Erode as an additional witness and copy of the proceedings not served on the petitioner. The proceedings for including the report of the Revenue Divisional Officer dated 07.08.1999 as an additional prosecution exhibit was not issued and (ii) corresponding entries should be made in the 3rd part of the Minute regarding addition of PW2 and Exhibit and the details such as date of service of charge memo on the petitioner, date of explanation, if any submitted by him from the date of commencement of oral enquiry, date of examination of Pws etc., should be furnished. If there is any defect in the enquiry conducted by the enquiry officer, the disciplinary proceedings can direct the enquiry officer to conduct further enquiry, in respect of that matter but it cannot direct fresh enquiry to be conducted by some other officer. Hence, this Court is of the view that remanding the matter to set right the defect in the enquiry will not invalidate the enquiry report. After remand, the enquiry officer issued proceedings for adding PW2, A. Jaganathan, Assistant, RDO's office as an additional witness and the proceedings of the Revenue Divisional Officer dated 07.08.1999 as additional prosecution exhibit. The enquiry officer, after set right the same, came to a conclusion that the charge against the petitioner is proved for which he relied much on the report dated 07.08.1999 of the Revenue Divisional Officer wherein it is stated that in the test identification parade, the complainant therein identified him two times. Pointing out the same, the enquiry officer came to a conclusion that the petitioner admittedly participated in the test identification parade conducted on 17.04.1998 and he was identified by the complainant therein twice, which factor was not disclosed by him in the verification roll dated 08.02.1999. Whereas, the defence witness one Edison examined by the petitioner on his side stated that the result of enquiry by the Revenue Divisional Officer made known to the petitioner only on 30.06.2000. It means the out come of the RDO enquiry whether he was found guilty or not was kept secretly atleast till 30.06.2000. It is necessary to remember that the enquiry report of the Revenue Divisional Officer was dated 07.08.1999, which is six months after the verification roll dated 18.02.1999 submitted by the petitioner.

8. It is not spoken by any of the prosecution witnesses that prior to 08.02.1999 the petitioner was aware or made aware of the contents of the report of the Revenue Divisional Officer. It is the case of the petitioner that when a report is prepared behind the back of the petitioner by an authority, such document can not be allowed to be marked by another witness and such documents cannot be relied on by the enquiry officer. The said argument cannot be ignored. In this context, the evidence of defence witness Edison assumes importance, who categorically stated that the petitioner could have been aware of the proceedings pending before the Revenue Divisional Officer only on 30.06.2000 and there is no valid material placed to disprove the said evidence. Consolidating the above facts, this Court is of the view that even such proceedings of the Revenue Divisional Officer in this case is concerned, cannot be construed as pendency of criminal case. Hence, this Court is of the view that the enquiry officer also committed an error while appreciating the evidence on both sides, which were not taken into account by the disciplinary authority, appellate authority or the revisionary authority

9. In this context, it is necessary to refer to the decision of the Honourable Supreme Court reported in (Pawan Kumar vs. State of Haryana and another) 1996 (4) SCC 17 wherein the Honourable Supreme Court held in Para-14 thus:-

14. Before concluding this judgment we hereby draw the attention of Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine up to a certain limit, say up to Rs 2000 or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever."

10. In the above Judgment, the Honourable Supreme Court has held that summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. Applying the said ratio laid down in the decision of the Honourable Supreme Court coupled with facts involved in this case, the petitioner herein was admittedly not convicted for the alleged offence, but stated to have participated in the enquiry alone, hence, this case is concerned, the same cannot be construed as pending criminal case or involvement of the petitioner in criminal case, moreover, on the date of submission of verification roll, the petitioner was not even aware of the result of the proceedings, hence, the question of suppression does not arise. The said facts were not properly considered by the enquiry officer, disciplinary authority, appellate authority and the revisionary authority. Normally punishment imposed by disciplinary authority should not be disturbed by the High Court except in appropriate cases, that too only after reaching a conclusion that it was illogical and shocking to the conscience of the Court. This is the case one of that category that interference of this Court is warranted. Hence, the impugned orders are quashed. The respondents are directed to restore the petitioner in the post of Sub-Inspector with all benefits. The respondents are directed to comply with this order within a period of eight weeks from the date of receipt of a copy of this order.

11. The writ petition is allowed. No costs.

27.08.2007

rsh

Index : Yes

Website : Yes

To

1. The Director General of Police

Tamil Nadu

Chennai  600 004

2. The Additional Director General

of Police (Law & Order)

Tamil Nadu

Chennai  600 004

3. The Deputy Inspector General of

of Police

Coimbatore Range

Coimbatore  18

4. The Superintendent of Police

District Police Office

Coimbatore  18

A. KULASEKARAN, J

rsh

WP No. 40550 of 2005

27.08.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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