Madras High Court

Y.Suresh Kumar vs The Government Of Tamil Nadu on 10 December, 2021

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 10.12.2021

                                                     CORAM:

                                  THE HONOURABLE DR.JUSTICE ANITA SUMANTH

                                      W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
                                                         and
                                            W.M.P.(MD)No.15510 of 2018

                     W.P.(MD)Nos.17630 of 2018:

                     Y.Suresh Kumar                                  ...Petitioner
                                                         /Vs./
                     1.The Government of Tamil Nadu,
                       Represented by its Additional Chief Secretary to Government,
                       Home (Police-2) Department,
                       Secretariat, Fort St. George, Chennai.

                     2.The Director General of Police,
                       Chennai.

                     3.The Additional Director General of Police,
                       Law and Order, Chennai.

                     4.The Deputy Inspector General of Police,
                       Tiruchirapalli Range,

                     1/17



https://www.mhc.tn.gov.in/judis
                       Tiruchirapalli.

                     5.The Superintendent of Police,
                       Trichy District.

                     6.The Superintendent of Police,
                       Dharmapuri District.
                     7.The Superintendent of Police,
                       Salem District.

                     8.The Superintendent of Police,
                       Thanjavur District.                           ...Respondents

PRAYER:- Writ Petition - filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the respondents to promote the petitioner to the post of DSP in the present batch in the current year in the ensuing promotion pursuant to the pre- promotional training given to the petitioner under order dated 19.06.2018.

For Petitioner : Mr.N.Dilip Kumar For Respondents : Mr.A.K.Manikkam Special Government Pleader

W.P.(MD)Nos.7624 of 2017:

                     Y.Suresh Kumar                                  ...Petitioner





https://www.mhc.tn.gov.in/judis
                                                         /Vs./

1.The Principal Secretary to the Government, Home Department, Secretariat, Fort St. George, Chennai – 600 009.

2.The Director General of Police, Chennai-04.

3.The Deputy Inspector General of Police, Salem Range, Salem.

4.The Superintendent of Police, Dharmapuri District.

                     5.The Deputy Superintendent of Police,
                       Kulithalai Range,
                       Karur District.                                  ...Respondents

PRAYER:- Writ Petition - filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records relating to the order of punishment passed by the 4th respondent Superintendent of Police, Dharmapuri dated 26.12.2012 in PR.No.20/2012 and the order of rejection passed in the appeal by the 3 rd respondent Deputy Inspector General of Police, Salem range, Salem

https://www.mhc.tn.gov.in/judis dated 07.02.2014 in Appeal No.13/2014 and the rejection order passed by the 2nd respondent Director General of police dt.20.01.2016 in R.Dis.No. 010113/AP.2(2)/2015 and quash the same and issue a consequential direction to the respondents to consider the petitioner for promotion to the post of Deputy Superintendent of Police with effect from the date on which his immediate juniors was promoted with all attended consequential and other benefits.

For Petitioner : Mr.N.Dilip Kumar For Respondents : Mr.A.K.Manikkam Special Government Pleader

COMMON ORDER

A common order is passed in both these writ petitions, since

the persona involved as well as the sequence of relevant facts are one and

the same.

2.The petitioner joined the uniformed services as a Sub-Inspector of

Police, by way of direct recruitment on 01.03.1996 and was promoted

through the ranks, over the years. He was charged with certain lapses in

the matter of investigating Crime No.49 of 2011 on the file of Harur

https://www.mhc.tn.gov.in/judis Police Station and a show cause notice was issued to him on 23.05.2012

in terms of Rule 3(a) of the Tamil Nadu Police Subordinate Services

(Discipline and Appeal) Rules, 1955 (in short 'Rules').

3.The charges were enquired into and a show cause notice was

served upon the petitioner on 09.07.2012. On the same day, the petitioner

submitted a request, admittedly received by the Superintendent of Police,

as it is acknowledged, requesting that he be supplied with the documents

cited in the show cause notice issued by the authorities. The petitioner

also specifically sought information in regard to an earlier incident

involving the Special Sub-Inspector of Police, one V.Panneerselvam also

stationed in the same police station.

4.The petitioner had alleged on an earlier occasion that

Paneerselvam along with certain others had availed unauthorized leave

and that an enquiry ought to have been initiated in that regard.

Preliminary report had also been filed by the Additional Superintendent

of Police and the petitioner sought information in regard to the stage of

enquiry.

5. This point appears to have been raised only to indicate the

https://www.mhc.tn.gov.in/judis possible existence of hostility inter se the petitioner and the said

Panneerselvam that might have had a bearing upon the proceedings

initiated. Admittedly, the petitioner was not supplied with the documents

sought for by him, being the statement of V.Panneerselvam, dated

27.07.2011 stated to have been recorded by the enquiry officer, ie., the

Additional Superintendent of Police and memo dated 19.04.2012 issued

by the Deputy Inspector General of Police addressed to the

Superintendent of Police.

6. Both the aforesaid documents form part of the show cause

notice and the petitioner, in line with the requirement under Rule 3(a) of

the Rules, is entitled to copies of the same to enable him to furnish an

informed reply and response to the allegations in show cause notice.

While not being supplied with the copies as sought for, the petitioner

received an order imposing punishment of postponement of increment

for a period of three years without cumulative effect, vide order dated

26.12.2012.

7.It is relevant to mention at this juncture that the procedure set out

under Rule 3(a) of the Rules contemplates that the authority imposing

https://www.mhc.tn.gov.in/judis punishment should hear the delinquent, after furnishing him a copy of the

enquiry report and soliciting his response to the same. This procedure has

however been given a go-by in this particular case. The order imposing

punishment also does not refer to the specific request of the petitioner

under cover of his letter dated 09.07.2012 seeking certain documents

relied upon by the authorities.

8.The petitioner filed an appeal as against the order of punishment

before the third respondent, who, by his order dated 07.02.2014

confirmed the same.

9.Briefly put, the charges as against the petitioner were that being

the superior authority in Harur Police Station, he had failed to take up

investigation in Crime No.49 of 2011 in a proper manner. FIR had been

registered in terms of Sections 279 and 304 (A) of the IPC, whereas the

authority was of the view that since the person involved in the incident

had ultimately died, the case ought to have been registered in terms of

Section 302 of IPC. Yet another allegation was the alleged failure of the

petitioner to conduct enquiry with the doctor who had conducted post

mortem on the deceased, one Valli, and ascertain that the case was only

https://www.mhc.tn.gov.in/judis an accident.

10. The defence of the petitioner was that on the date of occurrence

of the incident, which was 19.01.2011, he had not been in the site of the

incident, but had been attending bundobust duty in the premises of the

Tamil Nadu Civil Supplies Corporation at Ganapathipatty Village. He

had opted for this assignment specifically for the reason that a serious

law and order problem was anticipated at Ganapathipatty on account of

communal clash between two factions in that area, and in order to avoid

any untoward incident.

11.Between 19th of January and 21st of January, he had been on the

aforesaid bundobust duty. On 23rd and 24th of January, he had attended

the station and carried out routine works. However, the investigation of

the incident in question continued with the SSI Panneerselvam, who had

been on site, when the incident had occurred and who had taken over and

been in charge of the enquiry and investigation of the same. File had not

been handed over to the petitioner for further action and it was

Pannerselvam who had continued to attend that matter.

12.The petitioner had been relieved from Harur Police Station on

https://www.mhc.tn.gov.in/judis 24.01.2011, transferred to Salem District and assigned to a specific

police station there. Thus, he had had no occasion whatsoever to address

the incident in question or conduct enquiry thereupon. As regards the

charge that he had not conferred or enquired with the doctor who had

conducted post mortem upon the victim in the incident in question, the

petitioner would submit that the post mortem certificate itself had been

received only on 13.03.2011 and the question of enquiry with the Doctor

would arise only thereafter, whereas even as on 24.01.2011, he was out

of the picture, as he had been transferred.

13.The petitioner pointed out that the principles of natural justice

had been grossly violated in the matter, as he had not received the

documents relied upon by the authorities, despite a specific request in

that regard. He had also not been afforded an opportunity of personal

hearing prior to the formulation of the enquiry report.

14.The officer imposing the punishment had not called upon him to

tender his explanation either at the stage of enquiry or at the subsequent

stages in the proceedings. Therefore, the impugned order was vitiated by

gross violation of the principles of natural justice as it had proceeded

https://www.mhc.tn.gov.in/judis without any opportunity to him to put forth his case or defend himself.

15.This last is admitted and no defence is put forth in this regard.

The gross violation of procedure is apparent from the narration of facts

and in the proceedings. As against appellate order dated 07.02.2014, the

petitioner preferred a statutory revision before the second respondent,

who also dismissed the same, by his order dated 20.01.2016. Order dated

20.01.2016 is cryptic and has been passed without an opportunity of

personal hearing and merely relying upon the orders of the lower

authorities.

16.The petitioner filed the present writ petition, also simultaneously

filing a review before the Principle Secretary to Government. Pending

writ petition, the review has also come to be rejected.

17.For completion of narration, the parties would circulate a copy

of the Judgment of Additional District and Sessions Judge, Dharmapuri,

in Sessions Case No.75 of 2011, wherein the accused in that case, one

Murugan, who had been driving the motorbike, wherein the deceased

Valli had been riding pillion, had been charged with offence under

https://www.mhc.tn.gov.in/judis section 302 of IPC.

18.The accused was acquitted and the judgment records the

deposition of PW 16, one Doctor Anbumani, who has deposed

categorically to the effect that the deceased had been conscious and

oriented when she had been brought to the hospital. He had deposed that

her demise was an accident caused by her stole getting tangled in the

wheel of the motorbike and her consequential fall from the bike.

19.This was accepted as the cause of her demise and the judgment

refers to this factual position on more than one occasion (see paras 18 &

23 of the judgment). Though not directly relevant, it would serve to

support the case of the petitioner to the extent to which ultimately, the

raising of the charge under section 304(A), and not section 302, stood

vindicated. This is over and above the position that the petitioner had

nothing whatsoever to do with the enquiry and investigation of the

incident in question.

20.Learned Special Government Pleader was requested to produce

the records to ascertain the factual position as to the absence of the

https://www.mhc.tn.gov.in/judis petitioner from the Harur Police Station between 19.01.2011 and

24.01.2011. It is appalling to note that the General Diary for the period

in question, that would have served to establish the presence or otherwise

of the petitioner, is said to be missing. In any event, no serious defence is

put forth in regard to the position that the petitioner was not present in

the Harur police station, had been on bundobust duty in Ganapathipatti

Village on 19.01.2011 and had been transferred out of Harur police

station to Salem on 24.01.2011.

21.The counter filed to WP.(MD)No.17630 of 2018 though

containing 20 paragraphs contains nothing of substance. As regards the

counter filed in W.P.(MD)No.7624 of 2017, the tentative defence put

forth in regard to the non-furnishing of documents is that the petitioner

had been asked to inspect the documents, but had chosen not to do. This

submission is rejected straightaway.

22.Rule 3 of the Rules makes it clear that the show cause notice

issued to a delinquent is expected to be accompanied by all documents

stated in the notice itself and in any event, the authorities are expected to

have furnished copies of all documents relied upon by them in framing of

https://www.mhc.tn.gov.in/judis charges.

23.Only then will a delinquent have had proper opportunity to equip

himself with the materials relied upon by the authorities, and furnish an

appropriate defence to the charges levelled as against him. Thus, while

the statement that he was permitted to inspect the documents is itself

suspect, even assuming that such opportunity had been granted to him, it

is wholly inadequate and does not serve to comply with the principles of

natural justice.

24.As regards the non-service of notices prior to the imposition of

punishment, the authorities would state that VHF messages were passed

on to the petitioner reminding him to offer his explanation to the charge.

Messages sent over very high frequency (VHF) over walkie-talkie is the

regular mode of internal communication by the members of the

uniformed force and is certainly not expected to be utilized as a mode of

service of notices. Such a statement is absurd to say the least.

25. There is thus no doubt in my mind that the petitioner has

not been called upon by any of the authorities, that is, and to make it

https://www.mhc.tn.gov.in/judis clear, the enquiry officer, the authority imposing punishment, the

appellate authority, the revisional authority or the State prior to passing

of the impugned orders.

26.In view of the discussion as above, I have no doubt in my mind

that the impugned orders are liable to be quashed both on the aspect of

improper procedure followed as well as on the merits of the matter and

they are so quashed. All consequences shall follow. The mandamus as

sought for in WP.(MD)No.17630 of 2018 is issued as sought for and both

the writ petitions are allowed.




                                                                        10.12.2021
                     Internet : Yes
                     Index        :Yes/No
                     sm

Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

https://www.mhc.tn.gov.in/judis To

1.The Additional Chief Secretary to Government, Home (Police-2) Department, Secretariat, Fort St. George, Chennai.

2.The Director General of Police, Chennai.

3.The Additional Director General of Police, Law and Order, Chennai.

4.The Deputy Inspector General of Police, Tiruchirapalli Range, Tiruchirapalli.

5.The Superintendent of Police, Trichy District.

6.The Superintendent of Police, Dharmapuri District.

7.The Superintendent of Police, Salem District.

8.The Superintendent of Police, Thanjavur District.1.The Principal Secretary to the Government, Home Department, Secretariat, Fort St. George,

https://www.mhc.tn.gov.in/judis Chennai – 600 009.

9.The Principal Secretary to the Government, Home Department, Secretariat, Fort St. George, Chennai – 600 009.

10.The Deputy Inspector General of Police, Salem Range, Salem.