Madras High Court
J.Jayaraj vs The Director General Of Police on 29 July, 2021
W.P No.19548 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.07.2021
CORAM
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
Writ Petition No.19548 of 2009
`
J.Jayaraj .. Petitioner
vs.
1. The Director General of Police,
Chennai, Tamil Nadu.
2. The Deputy General of Police,
Armed Police, Chennai.
3. The Commandant,
TN Special Police-II,
Bn. Avadi, Chennai. .. Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorarified Mandamus calling for the records
relating to the order No. 05/2007 dated 24.07.2007, passed by the
3rd Respondent and order No.R No.C2/Appeal.15/2007, dated 09.10.2007,
passed by the Second Respondent and Order No.Rc,
No.211637/AP3(1)/2007, dated 18.01.2008, passed by the 1st Respondent
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and quash the same and to direct the Respondents to reinstate the Petitioner
in service w.e.f. 24.07.2007 with all consequential benefits, including
arrears of pay and allowances, continuity of service and consideration for
promotion to the next higher post/s on par with his immediate junior.
For Petitioner : Ms.Y.Kavitha, Advocate for
M/s.P.V.S.Giridhar & Sai Associates
For Respondents : Mr.C.Harsha Raj, Counsel for the State
ORDER
The Petitioner challenges an order of removal from service passed
originally on 24.07.2007 by the disciplinary authority, which was affirmed
in appeal by order dated 09.10.2007 and upon review by order dated
18.01.2008.
2. The petitioner joined the services of the police department as a
Special Police Constable in the year 2003. A charge memo was issued
against the petitioner on 24.04.2007 containing four charges. The first
charge was that he married T.Sasirekha (Sasirekha) while her marriage with
T.Venkatesan was subsisting, but the second and most significant charge
against the petitioner was that he had married T.Sasirekha on 15.11.2004 at
a temple in Tiruverkadu and suppressed such marriage and married another
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person, M.Parvathi (Parvathi), on 18.02.2005. The other charges relate to
causing embarrassment and disrepute to an organization like the police that
places great value on good conduct and discipline by entering into two
marriages and fathering children through both women, as also by receiving
dowry in the form of jewellery, a Hero Honda motorbike and other items at
the time of the second marriage. The admitted position is that the petitioner
was provided an opportunity to respond to such charge memo. At the
inquiry, the record shows that evidence was adduced and the petitioner was
provided an opportunity to cross-examine witnesses. Eventually, on the
basis of the inquiry report and upon consideration of the petitioner's
representation in respect thereof and other material aspects, the disciplinary
authority by order dated 24.07.2007 imposed the penalty of 'removal from
service' upon the petitioner. This was carried in appeal by the petitioner and
such appeal was dismissed by order dated 09.10.2007. The petitioner
presented a revision petition against such order and the said revision
petition came to be dismissed on 18.01.2008. These orders of dismissal are
impugned in the present writ petition.
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3. Learned counsel for the petitioner contended that the principal
charge against the petitioner, namely, that he had married Sasirekha on
15.11.2004 was not proved. In order to substantiate such contention,
learned counsel referred to the appellate order, which records the
delinquent's contention that there was no documentary or other evidence to
prove that the petitioner had married Sasirekha. According to learned
counsel, the conclusion of the appellate authority “ that bi-gomy (sic) is
confirmed beyond reasonable doubt” is ex facie erroneous after noticing
and not rejecting with reasons the contention that there is no documentary or
other evidence to prove such marriage. In addition, it is contended that the
appellate authority and the authority in revision did not apply their mind
independently to the evidence on record. By relying upon the orders of the
appellate authority and the authority in revision, learned counsel contended
that the orders of such authorities clearly evidence non-application of mind
and mechanical affirmation of the order of the disciplinary authority.
4. In support of the aforesaid contention, learned counsel relied
upon the judgment of the Jaipur Bench of the Rajasthan High Court in
Mahesh Chand Sharma v. State of Rajasthan in S.B.Civil Writ Petition
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No.2067 of 1999, wherein the Rajasthan High Court concluded at paragraph
44 of the judgment that disciplinary proceedings should not be instituted
because the Government Servant concerned commits adultery and that
such matters should be left to the individual concerned for initiation of
appropriate proceedings for divorce or other proceedings before the civil
courts.
5. Learned counsel also relied upon the counter affidavit of the
State wherein the State had indicated that the petitioner had failed to
exhaust the remedy of submitting a mercy petition before filing the writ
petition. On this basis, it is contended that the petitioner should be permitted
to at least submit a mercy petition to the respondents seeking reinstatement
without continuity of service and back wages.
6. On the contrary, Mr.Harsha Raj, learned counsel for the State,
submits that this is an unusual case wherein the evidence is sufficient even
for purposes of establishing the charges beyond all reasonable doubt. For
this purpose, learned counsel relied upon the statements made by the two
ladies in question, viz., Parvathi and Sasirekha. From the statement of
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Parvathi, he pointed out that Sasirekha had made a telephone call to
Parvathi and stated that she is the real wife and that Parvathi was in the
place that she should have occupied. By relying upon the statement of
Sasirekha, learned counsel pointed that Sasirekha admitted categorically
that a marriage ceremony was conducted between her and the petitioner on
15.11.2004 at Angalamman Temple at Thiruvenkadu, near Chennai, which
included the traditional symbols of marriage, i.e. tying of 'Thaali' and
exchange of garlands.
7. Learned counsel for the State placed considerable reliance on a
statement given by the petitioner on 17.10.2006, wherein the petitioner
categorically admitted that he married Sasirekha at the Angalamman
Temple, Thiruverkadu, on 15.11.2004 and that they lived as husband and
wife thereafter. He also referred to the representation of the petitioner dated
23.07.2007 in response to the inquiry report and pointed out that, even at
that stage, the petitioner agreed that he had performed a marriage ceremony
with Sasirekha but attempted to convey that it was not a valid marriage.
Indeed, his contention is that the petitioner attempted to gradually modify
the story at each phase of the proceedings, and that the denial of the
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marriage to Sasirekha was raised only at the appellate and revision stages of
the proceedings.
8. In view of the aforesaid evidence, learned counsel contended
that the charge of bigamy against the petitioner was duly established. In this
regard, he relied upon Rule 23 of the Tamil Nadu Police Conduct Rules
which provides as under:
Rule 23. Bigamous Marriages:
(1) (a) No Police Officer shall enter into a contract
marriage with a person having a spouse living and
(b) No Police Officer having a spouse living shall
enter into or contract a marriage with any person;
Provided that the Government may permit a Police
Officer to enter into or contract any such marriage as is
referred to in clause (a) or clause (b) if they are satisfied
that,
(i) such marriage is permissible under the personal
law applicable to such Police Officer and the other party to
the marriage; and
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(ii) there are other grounds for so doing.
(2) No Police Officer shall involved himself in any
act involving moral turpitude on his part including any
unlawful act, which may cause embarrassment or which may
bring discredit to Government.
9. For reasons set out above, it was submitted on behalf of the
State that the present petition is liable to be rejected and even the
punishment imposed on the petitioner is clearly not disproportionate to the
offence committed by him.
10. Upon considering the rival contentions, the question that
arises for consideration is whether the impugned orders of removal from
service are liable to be interfered with. This Court clearly does not function
as an appellate forum in such matters. In other words, the scope of judicial
review is largely confined to the following questions:
(i) Whether the principles of natural justice were complied with?
(ii) Whether there was a contravention of applicable laws or rules
with regard to jurisdiction or otherwise?
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(iii) Whether the orders impugned are perverse?
11. In the case at hand, the principal charge is that the petitioner,
who had previously married Sasirekha, bigamously married Parvathi. By
way of evidence in respect of such charge, the State relied upon the
statements of both Parvathi and Sasirekha. More importantly, reliance has
been placed upon the admission by the petitioner. On the other hand, the
petitioner contends that the factum of marriage to Sasirekha was not proved
by adducing sufficient evidence even on the standard of ''preponderance of
probability'. To put it differently, according to the petitioner, other than the
statements adverted to above and a photograph, no other evidence was
adduced to establish the marriage of the petitioner to Sasirekha or indeed to
establish the validity of such marriage. Even assuming arguendo that such
contention is credible, in judicial review, the Court does not reappraise
evidence or interfere because the quality of evidence was not up to requisite
standards. In such matters, interference is warranted only if the decision was
based on no evidence or if the evidence relied upon was totally irrelevant or
if vital evidence, which goes to the root of the matter, was disregarded. It
certainly cannot be said that the evidence adduced in the present case is
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irrelevant or that the conclusions were based upon no evidence. The
petitioner has neither contended nor established that vital evidence, which
goes to the root of the matter, was disregarded. Consequently, the orders
impugned cannot be interfered with on this ground.
12. A contention was raised that the appellate order and the order
in revision do not indicate an independent application of mind. Upon
perusal of the relevant orders, the said contention cannot be rejected out of
hand. However, an appellate authority or an authority in revision is not
required to set out extensive reasons for its conclusions especially when
such authority affirms the order of the original disciplinary authority. In the
present case, when the records are considered in totality, the orders
impugned herein do not call for interference on this count also.
13. The question of the nature of punishment imposed on the
petitioner remains to be considered. In matters relating to imposition of
punishment, since the Court does not sit in appeal, the only question is
whether the punishment awarded to the delinquent is within the spectrum of
reasonable punishments in the facts and circumstances.
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14. A Police Officer is prohibited from entering into a bigamous
marriage in terms of Rule 23 unless the said marriage comes within the
exceptions stipulated therein, whereas the petitioner herein married a second
time while the first marriage was subsisting and also fathered children
through both women. In this statutory and factual context, the judgment of
the Rajasthan High Court does not advance the cause of the petitioner, and
the contention that the punishment is grossly disproportionate to the offence
cannot be countenanced. Therefore, this contention also fails.
15. For the reasons aforesaid, the petitioner has failed to make
out a case to interfere with the orders impugned herein. Nevertheless, in
light of the statement of the respondents at paragraph 6 of the counter
affidavit to the effect that the petitioner had failed to exhaust the remedy of
submitting a mercy petition to the Government, the present writ petition is
disposed of by leaving it open to the petitioner to submit a mercy petition to
the Government in relation to his removal from service. Such mercy
petition, if any, shall be submitted by the petitioner within a period of two
weeks from the date of receipt of a copy of this order. Upon receipt thereof,
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the respondents are directed to consider and dispose of the same by a
written communication to the petitioner within a period of three months
thereof. It is made clear that such leave is granted solely in view of the non-
exhaustion of this avenue by the petitioner by leaving it open to the State to
deal with such petition as it deems fit. Nothing in this order should be
construed as enabling the petitioner to re-agitate the matter in a new round
of litigation pursuant to the decision on the mercy petition.
16. W.P. No.19548 of 2009 is disposed of on the above terms
without any order as to costs.
29.07.2021
Index : Yes/No
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To
1. The Director General of Police,
Chennai, Tamil Nadu.
2. The Deputy General of Police,
Armed Police, Chennai.
3. The Commandant,
TN Special Police-II,
Bn. Avadi, Chennai.
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SENTHILKUMAR RAMAMOORTHY J,
kal
Writ Petition No.19548 of 2009
29.07.2021
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