Madras High Court
R.Santhanam vs The State Of Tamil Nadu on 19 July, 2021
W.P.(MD)Nos.10054 & 8147 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.10054 of 2021
and
W.M.P(MD)Nos.7769 & 7770 of 2021
and
W.P(MD)No.8147 of 2021
and
W.M.P(MD)Nos.6202 & 6203 of 2021
R.Santhanam ... Petitioner
(in both writ petitions)
Vs.
1.The State of Tamil Nadu,
Rep. by its Additional Chief Secretary,
Home Department,
Secretariat,
Chennai.
2.The Director General of Police,
O/o.The Director General of Police,
Chennai-600 004.
3.The Commissioner,
O/o.Tribunal for Disciplinary Proceedings,
Opp. To Central Jail,
Trichy City,
Trichy District.
4.The Commissioner of Police,
O/o.The Commissioner of Police,
Trichy City,
Tiruchirappalli District.
1/12
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W.P.(MD)Nos.10054 & 8147 of 2021
5.The Assistant Commissioner of Police,
Traffic South,
Trichy District. ... Respondents
( in both writ petitions)
PRAYER in W.P(MD)No.10054 of 2021: Writ Petition is filed under
Article 226 of the Constitution of India, to issue a Writ of Certiorari,
calling for the records relating to the impugned G.O., issued by the
first respondent vide G.O.(2D) No.69, Home (Police-IV) Department,
dated 09.03.2021 and quash the same as illegal.
PRAYER in W.P(MD)No.8147 of 2021: Writ Petition under Article
226 of the Constitution of India, to issue a Writ of Certiorari, calling
for the records relating to the impugned Charge memo issued by
the third respondent in his proceedings in e.f.vz;.246/2007/m1,
(T.D.P.No.33) and consequential show cause notice issued by the
fourth respondent in C.No.H1-PR 16/2008 dated Nil.04.2011 along
with the enquiry report annexed therewith and quash the same as
illegal.
For Petitioner : Mr.Ajmal Khan
(in both W.Ps) Senior Counsel
for M/s.Ajmal Associates
For Respondents : Mr.P.Subbaraj
(in both W.Ps) Government Advocate
2/12
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W.P.(MD)Nos.10054 & 8147 of 2021
ORDER
W.P(MD)No.10054 of 2021 is filed to quash the impugned
G.O., issued by the first respondent vide G.O.(2D) No.69, Home
(Police-IV) Department, dated 09.03.2021.
2. The petitioner was appointed as Grade-II Police Constable
on 25.10.1993 and promoted as Grade-I Police Constable on
28.10.2004 and transferred to Traffic Investigation South, Trichy
City. While he was working as Grade-I Police Constable, a
chargememo was issued by the third respondent on 28.11.2007,
alleging that he along with one R.M.Selvam, Inspector of Police,
demanded a sum of Rs.1,000/- as a bribe from one Mr.Manikandan
while checking his vehicle. An Enquiry Officer was appointed and
enquiry was conducted. During the enquiry, the said Manikandan
was examined as P.W.1 and he has deposed that he has not seen the
petitioner at the place of occurrence and the allegation does not
relates to the petitioner. The said Manikandan was treated as
hostile witness. The third respondent relying on the evidence of
P.W.7, Inspector of Police, Vigilance and Anti Corruption and the
statement recorded under section 161(3) Cr.P.C., erroneously held
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W.P.(MD)Nos.10054 & 8147 of 2021
that charges levelled against the petitioner are proved and filed a
report on 30.09.2010. The enquiry report has been served on the
petitioner in April 2011. The petitioner has submitted his
explanation on 01.06.2011.
3. The learned Senior Counsel appearing for the petitioner
submitted that there was no progress in the conclusion of
disciplinary proceedings and no order was passed by the
disciplinary authority for more than 10 years. Hence, the
petitioner has filed a writ petition in W.P(MD)No.8147 of 2021
challenging the chargememo, dated 28.11.2007 and the
consequential show cause notice dated April 2011. After being
taken notice by the learned Government Advocate appearing for
the respondents in the said writ petition in W.P(MD)No.8147 of
2021, the first respondent imposed a punishment of compulsory
retirement by the impugned order dated 09.03.2021, which was
served on the petitioner on 18.05.2021 challenged in W.P(MD)No.
10054 of 2021 and hence, the petitioner has come out with these
two writ petitions.
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W.P.(MD)Nos.10054 & 8147 of 2021
4. The learned Senior Counsel appearing for the petitioner
submitted that the witnesses examined by the enquiry officer
turned hostile and relying on their evidence, the enquiry officer
held that the charge leveled against the petitioner is proved. The
said finding is erroneous. The disciplinary authority has to prove
the charge levelled against the petitioner by acceptable evidence.
Here is the case where there is no evidence at all to prove the
charges leveled against the petitioner.
5. The learned Senior Counsel appearing for the petitioner
further submitted that the respondents cannot keep the disciplinary
proceedings idle for years together without any further progress
and hence, the impugned order is liable to be set aside on the
ground of delay in concluding the disciplinary proceedings. He
further submitted that the first respondent has not given any
independent reason while imposing punishment. Not giving
independent reasons would vitiate the order imposing the
punishment by the first respondent. The finding can be given
based on the preponderance of probabilities, but there must be
some evidence to prove the charges. The conclusion cannot be on
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W.P.(MD)Nos.10054 & 8147 of 2021
the basis of mere surmises and conjectures and prayed for setting
aside the orders and allowing the writ petitions.
6. Mr.P.Subbaraj, learned Government Advocate appearing
for the respondents submitted that during vehicle check up, the
petitioner and the Inspector of Police have demanded and accepted
the bribe of Rs.1,000/- from one Manikandan. The petitioner
tampered with entries made in the vehicle diary, which was kept in
the police jeep, driven by him. P.W.7, the Inspector of Police,
Vigilance and Anti Corruption, Trichy deposed that the petitioner
and the Inspector of Police one Selvam demanded and accepted
illegal gratification from Manikandan for non-production of driving
licence. The enquiry officer relying on the evidence of P.W.7
Inspector of Police, Vigilance and Anti Corruption, held that the
charge is proved. The occurrence took place on 16.06.2005; the
charge memo was issued on 28.11.2007; enquiry was completed on
30.09.2010 and the enquiry officer submitted his report in April
2011. The petitioner submitted his explanation on 01.06.2011.
Due to administrative reason, the first respondent has passed the
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W.P.(MD)Nos.10054 & 8147 of 2021
impugned order on 09.03.2021. There is no error in the impugned
order and prayed for dismissal of the writ petitions.
7. Heard the learned counsel appearing for the petitioner
and the learned Government Advocate appearing for the
respondents and perused the materials available on record.
8. From the above materials and the submissions of the
learned Senior Counsel appearing for the petitioner, it is seen that
a charge memo was issued on 28.11.2007 for the occurrence took
place on 16.06.2005. Domestic enquiry was conducted for the
charge levelled against the petitioner. The Enquiry Officer
concluded the enquiry and submitted his report on 30.09.2010.
The respondents served the copy of the enquiry report in April
2011. According to the petitioner, he has submitted his explanation
on 01.06.2011. The learned Government Advocate has not
disputed the above dates and events as narrated by the learned
Senior Counsel appearing for the petitioner.
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W.P.(MD)Nos.10054 & 8147 of 2021
9. From the above facts, it is seen that the disciplinary
proceeding was initiated on 28.11.2007 by issuing charge memo;
enquiry was concluded on 30.09.2010 and the impugned order was
passed on 09.03.2021, after ten years from the date of the enquiry
report. The enquiry officer has submitted his report as early as on
30.09.2010. The said report was served on the petitioner in April
2011. The petitioner has submitted his explanation on 01.06.2011.
According to the learned Government Advocate , due to
administrative reasons, the delay has occurred in concluding the
proceedings. The said submission is erroneous. From the year
2011, the disciplinary authority has not passed any orders till
09.03.2021 and concluded the disciplinary proceedings only on
09.03.2021, keeping the disciplinary proceedings pending for such
a long time. The disciplinary authority has not given any
explanation for inordinate delay of 10 years in not passing order
concluding the disciplinary proceedings. Further, the witnesses
examined in the domestic enquiry have not supported the case of
the department. P.W.1, the complainant has stated that the
petitioner was not present in the place of occurrence. P.W.2
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W.P.(MD)Nos.10054 & 8147 of 2021
accompanied with P.W.1 also stated that he was not aware, who are
there in the occurrence place and cannot identify the person due to
passage of time. The enquiry officer relying on the evidence of P.W.
7, Investigating Officer- the Inspector of Police, Vigilance and Anti
Corruption and the Statement of 161(3) Cr.P.C., concluded that the
charge levelled against the petitioner was proved.
10. From the materials on record, it is seen that the enquiry
officer has given a finding on the basis of mere surmises and
conjectures and the judgment of the Hon'ble Apex Court relied on
by the enquiry officer is on different set of facts, as it was a trap
case and relying on the report of the enquiry officer, the delinquent
employee was found guilty. In view of the same, the ratio laid down
in the judgment relied on by the enquiry officer, is not applicable to
the facts of the present case. Further, the disciplinary authority
has also accepted the report of the enquiry officer and imposed
punishment. P.Ws.1 & 2 turned hostile. The enquiry officer has
stated that from the evidence of P.Ws.1 & 2 the charge leveled
against the petitioner is proved. The said finding is erroneous. It is
no doubt true that the strict proof of evidence, as in the case of
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W.P.(MD)Nos.10054 & 8147 of 2021
criminal proceedings is not applicable in the domestic enquiry, but,
there must be some evidence to prove the charges leveled against
the delinquent employee. In the present case, the finding of the
enquiry officer and punishment imposed are without there being
any evidence. When the finding of the enquiry officer and
punishment are imposed without any evidence, this Court in the
writ proceedings under Article 226 of the Constitution of India can
interfere with the said findings and punishment and set aside the
impugned order.
11. For the above reason, the impugned order passed in
W.P(MD)No.10054 of 2021, is set aside and writ petition is allowed.
No costs. Consequently, connected miscellaneous petitions are
closed.
12. In view of setting aside the impugned order in
W.P(MD)No.10054 of 2021 imposing punishment, the writ petition
in W.P(MD)No.8147 of 2021, challenging the charge memo, has
become infructuous.
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W.P.(MD)Nos.10054 & 8147 of 2021
13. In the result, W.P(MD)No.8147 of 2021 is dismissed as
infructuous. No costs. Consequently, connected miscellaneous
petitions are closed.
19.07.2021
Index:Yes/No
Internet:Yes/No
am
To
1.The Additional Chief Secretary,
Home Department,
Secretariat,
Chennai.
2.The Director General of Police,
Chennai-600 004.
3.The Commissioner,
Opp. To Central Jail,
Trichy City,
Trichy District.
4.The Commissioner of Police,
Trichy City,
Tiruchirappalli District.
5.The Assistant Commissioner of Police,
Traffic South,
Trichy District.
https://www.mhc.tn.gov.in/judis/
W.P.(MD)Nos.10054 & 8147 of 2021
V.M.VELUMANI, J.
am
W.P.(MD)No.10054 of 2021
and
W.M.P(MD)Nos.7769 & 7770 of 2021
and
W.P(MD)No.8147 of 2021
and
W.M.P(MD)Nos.6202 & 6203 of 2021
19.07.2021
https://www.mhc.tn.gov.in/judis/
