Madras High Court
Y.Suresh Kumar vs The Government Of Tamil Nadu on 10 December, 2021
W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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,
Tiruchirapalli.
5.The Superintendent of Police,
Trichy District.
6.The Superintendent of Police,
1/17
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W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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
/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.
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W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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 3rd
respondent Deputy Inspector General of Police, Salem range, Salem
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
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W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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 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
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W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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
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
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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
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
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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 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
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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 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
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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 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
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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 section 302 of IPC.
18.The accused was acquitted and the judgment records the
deposition of PW 16, one Doctor Anbumani, who has deposed
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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 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
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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 charges.
23.Only then will a delinquent have had proper opportunity to
equip himself with the materials relied upon by the authorities, and
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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
clear, the enquiry officer, the authority imposing punishment, the
appellate authority, the revisional authority or the State prior to passing
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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. No costs.
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.
To
1.The Additional Chief Secretary to Government,
Home (Police-2) Department,
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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,
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.
11.The Deputy Superintendent of Police,
Kulithalai Range, Karur District.
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W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
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DR.ANITA SUMANTH, J.
sm
Common Order made in
W.P.(MD)Nos.17630 of 2018 & 7624 of 2017
Dated:
10.12.2021
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