Madras High Court
M.Arul Kumar vs The State Of Tamil Nadu on 12 July, 2021
W.P(MD)No.17089 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P(MD)No.17089 of 2019
and
W.M.P(MD)No.13630 of 2019
M.Arul Kumar ... Petitioner
vs.
1.The State of Tamil Nadu,
Rep. by its Additional Chief Secretary to Government,
Home (Police – VI) Department, Chennai – 9.
2.The Director General of Police,
Chennai – 4.
3.The Superintendent of Police,
Tirunelveli, Tirunelveli District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorari, to call for the records relating to the
impugned punishment order of dismissal passed by the third respondent in
his proceedings in F order in P.R.No.82 of 2015, dated 26.07.2016 and the
consequential confirmation order passed by the second respondent in his
proceedings in RC.No.36715/AP2(1)/2017, dated 27.01.2018 and the
consequential rejection order passed by the first respondent in his
proceedings in G.O(D)No.307, Home (Police VI) Department, dated
20.03.2019 and quash the same as illegal.
1/16
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W.P(MD)No.17089 of 2019
For Petitioner : Mr.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.Veera.Kathiravan
Senior Standing Counsel
Assisted by
Mr.P.Subbaraj
Government Advocate
ORDER
The petitioner has filed the present Writ Petition, to quash the
impugned punishment order of dismissal passed by the third respondent,
dated 26.07.2016; the consequential confirmation order passed by the
second respondent, dated 27.01.2018 and the consequential rejection order
passed by the first respondent in G.O(D)No.307, Home (Police VI)
Department, dated 20.03.2019.
2.According to the petitioner, initially he was appointed as Police
Constable Grade-II on 01.03.2008 at Veerapuram Battalion, Avadi, Chennai.
While he was working as Police Constable Grade-II at Coutrallam Police
Station, a charge-memo, dated 27.05.2015 was issued consisting of two
charges. The petitioner submitted his explanation on 21.06.2015. The third
respondent by proceedings, dated 04.07.2015, appointed the Deputy
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Superintendent of Police, Puliyankudi Sub-Division as Enquiry Officer. After
concluding the enquiry, the enquiry officer submitted his report on
27.06.2016, holding that both the charges are proved. The petitioner
submitted his further representation on 19.07.2016. By proceedings, dated
26.07.2016, the third respondent, considering the materials, enquiry report
and submissions of the petitioner, dismissed the petitioner from service. By
an order, dated 26.10.2016, the appeal petition preferred by the petitioner
before the Appellate Authority viz., the Deputy Inspector General of Police,
Tirunelveli Range, was rejected. By an order, dated 27.01.2018, the second
respondent rejected the review petition. By an order, dated 20.03.2019, the
first respondent rejected the mercy petition of the petitioner. Challenging
the said orders, the petitioner has come out with the present Writ Petition.
3.The learned Senior Counsel appearing for the petitioner submitted
that no complaint was given against the petitioner that he demanded and
received a sum of Rs.200/- as bribe from an Iyyappa devotee, for
permitting him to take bath in Coutrallam main falls by using soap on
21.11.2014. Similarly, no complaint was given against the petitioner that he
assaulted two persons who were returning from a TASMAC shop with liquour
bottles and threatened them to return the liquor bottles to the TASMAC
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W.P(MD)No.17089 of 2019
shop. The witnesses examined in the domestic enquiry did not depose that
the petitioner had committed the said misconduct. Those two persons were
not examined in the domestic enquiry. The employers of TASMAC shop were
also not examined. The witnesses examined in the domestic enquiry did not
identify the petitioner as the person, who received bribe. There is no
evidence in the domestic enquiry to prove the charges levelled against the
petitioner. The enquiry officer, relying on the statements of P.W.1 to P.W.4,
which were recorded during preliminary enquiry behind the back of the
petitioner, held that the charges levelled against the petitioner are proved.
The said finding is perverse and the same is without any evidence. The
Enquiry Officer having failed to prove the allegation made against the
petitioner during oral enquiry, is not justified in relying on the statement
obtained from the witnesses during the preliminary enquiry, which was not
recorded in the presence of the petitioner. The serious charges of bribe
cannot be proved on mere probabilities and hearsay evidence. The first
respondent mechanically passed the order rejecting the mercy petition filed
by the petitioner.
4.In support of his contention, the learned Senior Counsel appearing
for the petitioner relied on the following Judgments:-
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W.P(MD)No.17089 of 2019
(i) In Union of India and others Vs. Gyan Chand Chattar reported
in 2009 (12) SCC 78, the Hon'ble Supreme Court held as follows:-
“21.Such a serious charge of corruption requires to be proved to
the hilt as it brings civil and criminal consequences upon the employee
concerned. He would be liable to be prosecuted and would also be
liable to suffer severest penalty awardable in such cases. Therefore,
such a grave charge of quasi-criminal nature was required to be
proved beyond any shadow of doubt and to the hilt. It cannot be
proved on mere probabilities.”
(ii) In K.Ramalingam Vs. The Superintendent of Police,
Perambalur reported in 2009 WLR 511, this Court held as follows:-
“8. Now the issue to be decided in this case is as to whether
the respondent was justified in relying on the statements made by
the witnesses during the preliminary enquiry, which was not
substantiated, admittedly during the oral/regular enquiry.
9. Whether the statements made during the preliminary
enquiry, not corroborated by cross examination can be validly relied
on by the Disciplinary authority, was considered by the Honourable
Supreme Court in the decision reported in (2004) 10 SCC 87 (Union
of India v. Mohammed Ibrahim). The Honourable Supreme Court held
that the order of dismissal was vitiated as the findings have been
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W.P(MD)No.17089 of 2019
based on consideration of statement of the persons, examined during
the preliminary enquiry and for the said fact the Tribunal set aside
the order of dismissal, which was upheld by the High court and there
is no error in the order setting aside the dismissal order.
10. A Division Bench of this Court by Judgment dated
22.2.2005 in W.P.Nos.29862 & 32581 of 2002 (The Deputy Inspector
General of Police, Villupuram and others v. V.Vanniaperumal and
others) upheld the order of the Tribunal, which set aside the order of
removal from service.
...........
11. The above referred decision of the Division Bench was
followed by me in the order dated 15.2.2006 in W.P.No.27019 of
2005 (B.Bals Murugan v. The Inspector General of Police, Madurai-2
and Two others), wherein the order of punishment was set aside.
12. I have also followed the above decisions and allowed
similar writ petition and the same is reported in (2006) 2 MLJ 202
(T.Pitchai v. Deputy Inspector General of Police, Tirunelveli) by setting
aside the order of dismissal with a direction to reinstate the petitioner
therein with all service benefits.
13. In the decision reported in (2006) 3 MLJ 900 (H.C. Lenin v.
Commissioner of Police), A.Kulasekaran, J., has taken a similar view
following the decision of the Honourable Supreme Court reported in
AIR 1999 SC 677 : (1999) 2 SCC 10 (Kuldeep Singh v. Commisisoner
of Police and others).
................
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W.P(MD)No.17089 of 2019
14. In view of the above cited settled position of law on this
aspect and having regard to the fact that there is no controversy
about the enquiry offier's finding of guilt on the part of the petitioner,
relying upon the statements given by the witnesses during the
preliminary enquiry and there was no occasion to cross examine the
said witness during the preliminary enquiry, I am of the view that the
charges framed against the petitioner cannot be said to be validly
proved. Hence the petitioner is bound to succeed in this writ petition
challenging the order of dismissal passed against him.”
(iii) In the Commissioner of Police, Delhi and others Vs. Jai
Bhagwan reported in 2011 (6) MLJ 305 (SC), the Hon'ble Apex Court
held as follows:-
“15.It also seems quite impracticable to presume that in the
presence of so many passengers, the respondent could have
extorted money. The allegation of receiving Rs. 100/- as illegal
gratification is framed on suspicions and possibilities while trying to
link it up with the instance of returning back of Rs. 100/- by the
respondent to the complainant. There are many other shortcomings
in the entire investigation and the enquiry like the statement of Mrs.
Ranjana Kapoor was not recorded by the Inspector and the Inspector
also did not take down in writing and also attest the complaint made
by her. The statement of S.P. Narang was also not recorded by the
Inspector nor did the Inspector seize Rs. 100/- note nor noted down
its number. Mr. Narang was also not examined during the course of
departmental proceedings. Non-examination of the complainant and
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W.P(MD)No.17089 of 2019
P.S. Narang during the departmental proceeding has denied the
respondent of his right of cross-examination and thus caused
violation of Rule 16 (iii) of the Delhi Police (F & A) Rules, 1980.
16.In the absence of such a definite/clear proof supporting the
case of the appellants it is difficult to draw a finding of taking illegal
gratification by the respondent from the complainant. Therefore, as
rightly held by the High Court the present case is a case of no
evidence.”
(iv) In Principal Secretary to the Government of Tamil Nadu Vs.
J.Joseph Vaz reported in (2017) 2 MLJ 641, the Division Bench of this
Court held as follows:-
“8. On perusal of the materials available on record, we find
that the learned Single judge, by relying upon the entire evidence,
has arrived at a finding that the Enquiry Officer has not considered
the testimonies of witnesses in proper perspective. The findings of
the Enquiry Officer were based on surmises and conjectures and
the disciplinary authority also simply agreed with the findings of
the Enquiry Officer and went through the report of the Tamil Nadu
Public Service Commission and ordered for removal from service.
The learned Single Judge has also come to the conclusion that the
disciplinary authority has failed to consider the material points and
simply accepted the findings of the Enquiry Officer. Therefore, in
our considered view, if the finding of the Enquiry Officer is not
supported by any evidence, the Court can make an interference. In
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the instant case, by dealing with each and every aspect, the
learned Single Judge has come to the correct conclusion that the
Enquiry Officer rendered a finding based on surmises and
conjectures. Therefore, absolutely, we do not find any infirmity in
the said order warranting interference at the hands of this Court.
Thus, the Writ Appeal is liable to be dismissed and accordingly, it
is dismissed. The appellants are directed to disburse the
retirement benefits, within a period of six weeks from the date of
receipt of a copy of this judgment. No costs.”
5.The respondents filed counter-affidavit.
6.The learned Senior Standing Counsel appearing for the respondents
submitted that the charges levelled against the petitioner are very serious in
nature. The petitioner, who was working as Constable, involved in serious
misconducts demanding money and he attacked two persons. For the
charges levelled against the petitioner, domestic enquiry was conducted.
The enquiry officer, after elaborate consideration of the evidence, held that
the charges levelled against the petitioner are proved. P.W.1 has
categorically stated that the petitioner threatened and assaulted two
persons, who bought liquor bottles and forced them to return the bottles
and get back their money. P.W.2 and P.W.3 turned hostile, but they admitted
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W.P(MD)No.17089 of 2019
their signature in the statement given before P.W.5-Assistant
Superintendent of Police during preliminary enquiry. In the statement, they
have clearly mentioned the receipt of bribe by the petitioner. The Assistant
Superintendent of Police, who conducted preliminary enquiry, has proved
the statement given by the witnesses, which proved the charges levelled
against the petitioner. The allegation that at the instigation of Mariappan,
Special Sub-Inspector of Police, Special Branch, who, according to the
petitioner, lords over all the police personnel, including the Sub-Inspector of
Police, false charges are levelled against the petitioner is not correct. The
charges levelled against the petitioner were proved by examining witnesses
and marking documents. For the proven charges, the disciplinary authority
passed the impugned order, dismissing the petitioner from service. The
order of punishment is commensurate with the charges levelled against the
petitioner. There is no procedural violation by the disciplinary authority. The
petitioner was earlier imposed with 12 punishments. The Appellate
Authority, considered the merits of the appeal and also his previous
misconduct for the past 7 years and 12 punishments imposed earlier, held
that the petitioner is not entitled to continue in Uniformed service. The
punishment imposed is proportionate to the proven charges and prayed for
dismissal of the Writ Petition.
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W.P(MD)No.17089 of 2019
7.Heard the learned Senior Counsel appearing for the petitioner and
the learned Senior Standing Counsel appearing for the respondents and
perused the entire materials available on record.
8.From the materials available on record, it is seen that the
charge-memo, containing two charges was issued to the petitioner on
27.05.2015. The first charge was that he demanded and accepted bribe of
Rs.200/- from an Iyyappa devotee, who took bath in Coutrallam main falls
by using soap. Admittedly, the said Iyyappa devotee was not identified and
not obtained any statement from him. According to the petitioner, P.W.2-one
of the Homeguards, who was on duty along with the petitioner, gave a
petition to the Inspector. It is the case of the respondents that preliminary
enquiry was conducted and statement of witnesses were recorded. P.W.2
and P.W.3, the then Homeguards deposed that they did not know the
alleged occurrence. Those witnesses were treated as hostile and were
cross-examined. The signature in the statement given before the Additional
Superintendent of Police in the preliminary enquiry was shown to them and
they admitted the same as their signature, but they deposed that they did
not note the contents of the statement before signing. The statements were
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recorded not in the presence of the petitioner and P.W.2 and P.W.3 have
deposed that they do not know the occurrence. Further, P.W.1 who was
examined to prove the second charge, has deposed that he saw one
Uniformed person shouting at two unidentified persons and asked them to
return the liquor bottles to the TASMAC shop and get the return of money.
Subsequently, he saw the said person talking with two unidentified persons,
but he does not know what the uniformed person conversed with those
persons. From the evidence of those persons, they have not implicated the
petitioner to the charges levelled against him. The witnesses examined
before the Enquiry Officer did not depose that the petitioner received bribe
and assaulted two unidentified persons. This shows that there is no
evidence to prove the charges levelled against the petitioner.
9.As rightly contended by the learned Senior Counsel appearing for
the petitioner that demanding and receiving bribe is a grave charge and it
must be proved by acceptable evidence. The Honourable Apex Court in the
Judgment reported in 2009 (12) SCC 78 [Union of India and others Vs.
Gyan Chand Chattar] held that serious charges of bribe cannot be proved
on mere probabilities and hearsay evidence. Further, in the Judgment
reported in 2009 WLR 511 [K.Ramalingam Vs. The Superintendent of
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W.P(MD)No.17089 of 2019
Police], this Court held that Enquiry Officer is not justified in relying on the
statement obtained from the witnesses during the preliminary enquiry,
which was not recorded in the presence of the delinquent employee and that
the charges cannot be held proved only on the basis of the statement given
during preliminary enquiry and whether charges are proved or not, is to be
determined only on the basis of the statements made during the oral
enquiry. The Judgments relied on by the learned Senior Counsel appearing
for the petitioner are squarely applicable to the facts of the present case.
The report of the Enquiry Officer holding that the charges levelled against
the petitioner are proved, based on the statement recorded during the
preliminary enquiry behind the back of the petitioner, is perverse. In view of
the same, the punishment of dismissal imposed by the disciplinary authority
relying on perverse report of Enquiry Officer is non-est in law and illegal. In
view of the same, the order of the third respondent/disciplinary authority,
dated 26.07.2016, imposing punishment order of dismissal is set aside and
the order of the second respondent, dated 27.01.2018, confirming the
punishment order of dismissal and the consequential rejection order passed
by the first respondent, dated 20.03.2019, are erroneous.
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W.P(MD)No.17089 of 2019
10.For the above reasons, the impugned orders are set aside and the
Writ Petition is allowed. No costs. Consequently, connected Miscellaneous
Petition is closed.
12.07.2021
Index : Yes / No
Internet : Yes
ps
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.
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W.P(MD)No.17089 of 2019
To
1.The Additional Chief Secretary to Government,
Home (Police – VI) Department,
Chennai – 9.
2.The Director General of Police,
Chennai – 4.
3.The Superintendent of Police,
Tirunelveli,
Tirunelveli District.
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W.P(MD)No.17089 of 2019
V.M.VELUMANI,J.
ps
W.P(MD)No.17089 of 2019
12.07.2021
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