W.P.No.30962 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.30962 of 2019
A.Kanagadasan ... Petitioner
Versus
1. The Director General of Police,
Tamil Nadu,
No.1, Dr.Radhakrishnan Salai,
Mylapore,
Chennai-600 004.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur-613 001.
3. The Deputy Superintendent of Police,
Thiruvaur ... Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue Writ of Certiorarified Mandamus to call for the records pertaining to the
order of the first respondent bearing R.C.No.Con.II(1)/133675/2007 dated
11.05.2019 confirming the order of the second respondent bearing PR
C3/PR.25/04 dated 31.07.2018 and quash the same and consequently direct the
first respondent to consider the name of the petitioner for next promotion with
retrospective effect from the date on which his immediate junior was promoted
as the Inspector of Police in 2007.
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W.P.No.30962 of 2019
For Petitioner : Mr.S.Mohan
For Respondents : Mr.L.S.M.Hasan Fizal
AGP
ORDER
This writ petition has been filed challenging the order dated 11.05.2019 passed by the first respondent, confirming the order of the second respondent dated 31.07.2018.
2. While working as Sub Inspector of Police at Eravancheri Police Station in Tiruvarur District, a case was registered against the petitioner in Cr.No.15/05 for the offence punishable under Sections 13(1)(d) r/w Sec.13(2) of the Prevention of Corruption Act, 1988 on the file of the Vigilance & Anti Corruption Police, Nagapattinam based on the complaint given by one A.Sundaramurthi dated 18.07.2005 alleging that the petitioner had demanded Rs.2,000/- as bribe for not filing a case against him on the complaint given by one Marimuthu. The petitioner was arrested in the said case on 18.07.2005 on an alleged trap made by the Inspector of Police, Vigilance and Anti-Corruption Police, Nagapattinam. One Raghavan, Head Constable, attached to the Eravancheri Police Station and was also arrested in the same case on the charge that he had accepted a bribe of Rs.200/-.
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3. The petitioner was placed under suspension on 21.07.2005 and was reinstated into service on 22.03.2008. Charge sheet was filed in Spl.C.C.No.4 of 2008 on the file of Chief Judicial Magistrate, Tiruvarur. Out of 19 witnesses examined on the side of the prosecution, 5 witnesses, including the de-facto complainant A.Sundaramurthi, turned hostile. The official witnesses alone deposed in support of the prosecution case. Ultimately, the petitioner was acquitted from all the charges by judgment dated 24.11.2016 passed by the learned Chief Judicial, Magistrate, Tiruvaur, holding that the prosecution failed to prove the case.
4. During the pendency of the criminal case, the second respondent issued a charge memo dated 30.06.2008 to the petitioner in P.R.No.40 of 2008. The charge reads as follows:
“ Highly reprehensible conduct in having demanded Rs.5000/-as bribe from Tr.A.Sundaramoorthy, S/o Annasamy, Puthupagasalai Village on 14.07.2005 at Eravanchery Police Station and later reduced the amount and agreed to receive Rs.2000/- as bribe for not taking action against him and 3 of his relatives on the oral complaint given by one Tr.Marimuthu and his son 3/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 Tr.Kalyanasundaram of Puthui Pagasalai in connection with an affray ensured between them on 12.07.2005 at Puthu Pagasalai and in pursuance of said demand, on 18.07.2005 accepted Rs.1,800/- at his residence and directed to pay Rs.200/- to Tr.K.Raghavan, Head Constable 495, who accepted the same at the police station from the complainant and thereby committed an offence punishable U/S 7, 13(1)() r/w 13(2) of P.C.Act.”
5. The third respondent was appointed as an Enquiry Officer in the disciplinary proceedings. In the Enquiry, all the witnesses excepting the official departmental witnesses turned hostile. The Enquiry Officer/third respondent submitted his Report dated 14.05.2017. The Report was sent by the Superintendent of Police, Tiruvaur by letter dated 05.12.2017. The second respondent, in turn, caused a notice dated 19.12.2017 enclosing the enquiry report and directed the petitioner to submit his explanation on the findings of the Enquiry Officer. The petitioner submitted his explanation dated 02.02.2018 to the second respondent. The second respondent passed an order dated 31.07.2018 accepting the report of the Enquiry Officer/third respondent and holding the petitioner guilty of the charge. A punishment of postponement of increment for a period of one year with cumulative effect was imposed upon the petitioner.4/13
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6. The petitioner thereafter preferred an appeal on 12.11.2018 before the first respondent. The first respondent by his order dated 11.05.2019 confirmed the punishment imposed by the second respondent. Aggrieved by the same, the petitioner has filed this writ petition.
7. As seen from the enquiry report submitted by the third respondent, the basis for giving a finding that the charge against the petitioner has been proved is that the Forensic Science Laboratory's Report, after conducting the phenolphthalein test and Sodium Carbonate test, it is established that the seized currency notes were received by the petitioner and on preponderance of probability it can be concluded that the petitioner had received bribe. However, the Mahazar Report dated 18.07.2005 submitted by the Inspector of Police, Vigilance and Anti-Corruption which is filed as a document along with this writ petition, would show that the colour did not change in the phenolphthalein test, which is contradictory to the findings of the Forensic Laboratory's report, which discloses that there was colour change.
8. The criminal court in its judgment in Spl.C.C.No.4 of 2008 dated 24.11.2016 passed by the Chief Judicial Magistrate, Tiruvarur, has also 5/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 acquitted the petitioner as the prosecution has failed to establish that the petitioner had received bribe. The same set of witnesses who were examined in the disciplinary proceedings were also examined as witnesses on the side of the prosecution in the criminal case. The basis of criminal prosecution is also the same as that of the charge memo, which was issued in the disciplinary proceedings against the petitioner. All the independent witnesses in both the criminal prosecution and in the disciplinary proceedings have turned hostile and have supported the case of the petitioner rather than supporting the case of the prosecution. The only basis for imposing punishment in the disciplinary proceedings against the petitioner is the Forensic Science Laboratory's Report. As observed earlier, the said report is contradictory to the findings of the Mahazar Report submitted by the Inspector of Police, which was submitted immediately on the seizure of the currency notes from the petitioner.
9. The alleged incident is said to have taken place on 18.07.2005 and the charge memo was issued against the petitioner in the disciplinary proceedings on 30.06.2008, i.e., after a period of more than three years from the date of incident. Admittedly, enquiry in the disciplinary proceeding commenced only in the year 2015 though an explanation to the charge memo was given by 6/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 the petitioner immediately on receipt of the said charge memo. The enquiry report along with the minutes of the third respondent was also submitted to the second respondent only in the year 2017 and the punishment was imposed on the petitioner in the year 2018.
10. No additional evidence or factual information other than those pleaded in the criminal case were available for the respondents to initiate disciplinary proceedings against the petitioner. As seen from Tamil Nadu Police Standing Orders 67 (3) in departmental enquiries, under normal circumstances, the departmental authorities should not dissent from the conclusions arrived at by the Court of Law, unless fresh circumstances have brought to light that there was lacunae or defects in the evidence before, or in the procedure of such court.
11. In the case on hand, on similar set of facts and evidence, the criminal court has acquitted the petitioner, whereas, the disciplinary authority has punished the petitioner on preponderance of probability. Even for existence of preponderance of probability, there must be some evidence, which lead to the conclusion that the department has proved the guilt of the delinquent. However, in the instant case, when the mahazar report at the time of seizure of currency 7/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 notes, clearly indicates that there was no change of colour in the phenolphthalein test, the question of accepting the Forensic Science Laboratory's test which was taken later and that too in the absence of the petitioner is not an acceptable piece of evidence and cannot be taken into consideration for the purpose of punishing the petitioner that too, when it is contrary to the findings of the mahazar report submitted by the Inspector of Police . Police Standing Order (PSO) 67 reads as follows:
“ PSO 67. Procedure after acquittal:-
(1)....
(2)....
(3) The Government do not wish it to be understood that the departmental authorities are not entitled, on grounds of legitimate suspicion, to order a departmental enquiry in all such cases.
They do, however, wish to emphasize that in
enquiries of this kind, the departmental
authorities should not dissent from the
conclusions arrived at by the Court of law, unless fresh circumstances have brought to light lacunae or defects in the evidence before, on in the procedure of such court.” 8/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019
12. The enquiry report was submitted on 14.05.2017, whereas, the second respondent accepted the report of the Enquiry Officer holding the petitioner guilty of the charge and has imposed punishment of postponement of increment for one year with cumulative effect only on 31.07.2018 i..e, after the lapse of more than 14 months from the date of submission of the enquiry report by the third respondent. The Vigilance and Anti-Corruption Department has also not filed any appeal as against the acquittal of the petitioner in the criminal proceedings.
13. A.Sundaramurthi, the complainant who has deposed as witness No.1 before the criminal court and the Investigating Officer/third respondent has categorically stated that in a tussle between him and one Marimuthu on 12.07.2005, the latter sustained some injuries and for the said injuries, during the enquiry in Eravanchery Police Station on 14.07.2005, he agreed to pay Rs.2,000/- towards the medical expenses of the injured Marimuthu and the said amount was used as trap money in the instant case. He would categorically contend that no bribe was paid to the petitioner. He has also deposed that the petitioner did not make any demand of Rs.5,000/- or Rs.2,000/- 9/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 and that he never paid any money to the petitioner. Mr.T.Govindaraj / Witness No.2, Mr.T.Rajendran/WitnessNo.4, Mr.V.Gopi/ WitnessNo.5, Mr.M.Kumar/ Witness No.6, Mr.M.Kalyanasundaram/Witness No.7, Mr.Mathivanam/Witness No.8, Mr.Ayyappan/Witness No.9, Mr.Vaithiyalingam/Witness No.10 who were also examined in the departmental enquiry to corroborate the bribe charge, have all pleaded ignorance about the allegations against the petitioner. The petitioner at the time of filing of this writ petition was left with two years and 9 months of service only. As seen from the affidavit filed in support of the writ petition, excepting for the present case, no disciplinary proceeding is pending against the petitioner.
14. For the foregoing reasons, this Court is of the considered view that the impugned orders have been passed without there being any evidence against the petitioner for having received bribe and therefore, the impugned orders have to be necessarily quashed and the writ petition will have to be allowed.
15. Accordingly, the impugned orders of the first respondent dated 11.05.2019 and the second respondent dated 31.07.2018 imposing a 10/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 punishment of postponement of increment for one year with cumulative effect against the petitioner is hereby quashed and the writ petition is allowed. No costs. The respondents are directed to regularise the period of suspension in accordance with Rules and grant the petitioner the consequential service and monetary benefits as if he was not awarded with punishment in the departmental proceedings, within a period of three months from the date of receipt of a copy of this order. No costs.
22.09.20 22 sr Index: Yes/No Speaking Order/Non-Speaking Order To
1. The Director General of Police, Tamil Nadu, No.1, Dr.Radhakrishnan Salai, Mylapore, Chennai-600 004.
2. The Deputy Inspector General of Police, Thanjavur Range, Thanjavur-613 001.
3. The Deputy Superintendent of Police, Thiruvaur 11/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 12/13 https://www.mhc.tn.gov.in/judis W.P.No.30962 of 2019 ABDUL QUDDHOSE, J sr W.P.No.30962 of 2019 22.09.2022 13/13 https://www.mhc.tn.gov.in/judis