Madras High Court
P.Deenadayalan vs The State Of Tamil Nadu on 1 October, 2021
W.P.(MD)No.10319 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.10.2021
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
W.P.(MD)No.10319 of 2014
and
M.P.(MD)No.1 of 2014
P.Deenadayalan ... Petitioner
vs.
1.The State of Tamil Nadu
represented by its Principal Secretary to Government,
Home Department,
Secretariat, Chennai.
2.The Director General of Police,
Chennai - 4.
3.The Inspector General of Police
cum Commissioner,
Madurai City, Madurai.
4.Deputy Commissioner of Police,
Armed Reserve,
Madurai City, Madurai. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Certiorarified Mandamus, to call for the
records relating to the order passed by the first respondent in his
proceedings G.O.(2D)No.401, Home (Police VI) Department, dated
01.08.2013 confirming the order passed by the second respondent in his
1/15
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W.P.(MD)No.10319 of 2014
proceedings C.No.104553/AP.2(3)/2010, dated 20.01.2011 modifying the
order passed by the third respondent in his proceedings in
Na.Ka.No.D1(2)/Appeal.11/09, dated 23.10.2009 confirming the order
passed by the fourth respondent in his proceedings in F order, dated
19.05.2009 and to quash the same as illegal and consequentially to direct
the respondents to promote the petitioner as Head Constable with effect
from the date on which his immediate junior was promoted.
For Petitioner : Mr.C.Venkatesh Kumar
for M/s.Ajmal Associates
For Respondents : Mr.M.Linga Durai
Government Advocate
*****
ORDER
This Writ Petition is filed for issuance of a Writ of Certiorarified
Mandamus, to quash the impugned order of the first respondent vide
G.O.(2D)No.401, Home (Police VI) Department, dated 01.08.2013,
confirming the order passed by the second respondent in his proceedings,
dated 20.01.2011, modifying the order passed by the third respondent in
his proceedings, dated 23.10.2009, confirming the order passed by the
fourth respondent in his proceedings, dated 19.05.2009, and to direct the
respondents to promote the petitioner as Head Constable with effect from
the date on which his immediate junior was promoted.
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W.P.(MD)No.10319 of 2014
2.Heard, Mr.C.Venkatesh Kumar, learned Counsel appearing for
the petitioner and Mr.M.Linga Durai, learned Government Advocate
appearing for the respondents.
3.Brief facts, that are necessary for the purpose of disposal of this
Writ Petition, are as follows:
3.1.The petitioner was appointed as Police Constable Grade-II on
24.05.1999. He was promoted as Police Constable Grade-1 on
24.05.2010. While the petitioner was working as Police Constable
Grade-II, the fourth respondent issued a charge memo on 09.08.2008
alleging that he was arrested in connection with a criminal case lodged
by his ex-wife for dowry harassment. After receiving the explanation
from the petitioner, the fourth respondent appointed an Enquiry Officer
and based on the Enquiry Officer's report holding that the charge against
the petitioner stood proved, the fourth respondent by order, dated
19.05.2009, imposed the punishment of postponement of increment for a
period of one year without cumulative effect. It is admitted that the
punishment was imposed after issuing second show cause notice and
furnishing the copy of the enquiry report.
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W.P.(MD)No.10319 of 2014
3.2.The order of the fourth respondent was challenged by the
petitioner by way of appeal before the third respondent, who rejected the
appeal, by impugned order, dated 23.10.2009. Thereafter, the petitioner
preferred a revision/review petition before the second respondent, who in
turn, by impugned proceedings, dated 20.01.2011, modified the
punishment of postponement of increment for a period of one year
without cumulative effect into that of black mark. Even thereafter, the
petitioner preferred a mercy petition before the first respondent, who
rejected the request of the petitioner, by impugned order vide G.O.
(2D)No.401, dated 01.08.2013. Challenging the orders of respondents,
the above Writ Petition is filed.
4.The learned Counsel for the petitioner raised several grounds in
the Writ Petition, in the course of argument submitted that the criminal
case registered at the instance of his ex-wife ended in acquittal and that
the respondents cannot sustain the order of punishment without any
independent enquiry into the charges or the offences stated to have been
committed by the petitioner against his wife. Stating that the charges
levelled against the petitioner is not in connection with the petitioner's
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W.P.(MD)No.10319 of 2014
official duty, the learned Counsel for the petitioner submitted further that
the charges cannot be independently proceeded, as the Criminal Court
has given a verdict acquitting the petitioner from the charges. The
learned Counsel for the petitioner referring to several factual details
submitted that the complaint was lodged by his ex-wife based on no
evidence and that therefore, his wife has given evidence before the
Criminal Court contrary to, what she has stated in the complaint. It is
further contended that the findings of the Enquiry Officer was based on
no evidence and that therefore, the order of punishment cannot be
sustained.
5.The learned Counsel also submitted that the Appellate
Authority has not passed any reasoned order in conformity with Rule 6 of
Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules,
1955, and that the orders of respondents are liable to be quashed, as they
have not considered relevant material facts placed before him and the
verdict of Criminal Court. Since the punishment of black mark will have
serious implications affecting the promotion of the petitioner, the learned
Counsel also stated that the impugned orders cannot be sustained without
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W.P.(MD)No.10319 of 2014
any independent evidence to prove the charges.
6.The learned Counsel relied upon a judgment of the Honourable
Supreme Court in the case of Roop Singh Negi vs Punjab National
Bank and others, reported in (2009) 2 SCC 570, to sustain his arguments
that the orders passed by the second and first respondent without
referring or assigning reasons cannot be sustained. The relevant portion
of the said judgment of the Honourable Supreme Court reads as follows:
“23.Furthermore, the order of the disciplinary authority as
also the appellate authority are not supported by any reason. As the
orders passed by them have severe civil consequences, appropriate
reasons should have been assigned. If the enquiry officer had relied
upon the confession made by the appellant, there was no reason as to
why the order of discharge passed by the Criminal Court on the basis
of self-same evidence should not have been taken into consideration.
The materials brought on record pointing out the guilt are required to
be proved. A decision must be arrived at on some evidence, which is
legally admissible. The provisions of the Evidence Act may not be
applicable in a departmental proceeding but the principles of natural
justice are. As the report of the Enquiry Officer was based on merely
ipse dixit as also surmises and conjectures, the same could not have
been sustained. The inferences drawn by the Enquiry Officer
apparently were not supported by any evidence. Suspicion, as is well
known, however high may be, can under no circumstances be held to
be a substitute for legal proof.”
7.The learned Counsel for the petitioner relied upon a judgment
of this Court in the case of V.P.Suresh Kumar vs Deputy Inspector
General of Police and another, reported in (2011) 7 MLJ 1282, to
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W.P.(MD)No.10319 of 2014
sustain his argument that the appellate and review authority have not
considered the grounds raised by the petitioner before them and the non
speaking order passed by the respondents 2, 3 and 4 are liable to be set
aside.
8.The learned Counsel also relied upon an unreported judgment
of the learned Single Judge of this Court, dated 04.06.2015, W.P.15751 of
2015 in the case Jyothi vs Vice Chancellor, Indhra Gandhi National
Open University and others, wherein, this Court has held as follows:
“3.Considering the above facts, I am not inclined to issue
a direction as sought for by the petitioner. It is clearly a
matrimonial dispute. Now the divorce proceedings is pending
before the concerned court. If the petitioner is aggrieved by the
conduct of her husband in getting married, while the marriage
with her is subsisting, she can very well initiate proceedings in a
criminal court in the manner known to law. The department
cannot initiate criminal action for bigamous marriage. Even in
the case of request to take departmental action, I am of the view
that in the family matters, the department shall be very slow in
taking departmental action. It is for the department to decide
based on the facts of the each case. I am not inclined to issue
direction to the department to take disciplinary action in the
purely matrimonial dispute, by invoking the extraordinary
jurisdiction under Article 226 of the Constitution of India. I find
no merit in the Writ Petition.”
9.The learned Counsel for the petitioner relied upon yet another
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W.P.(MD)No.10319 of 2014
judgment of this Court in the case of K.Pichaimani vs The Management
of TNSTC and others another, in W.P.(MD)No.3365 of 2006, dated
14.12.2012, wherein, this Court has held as follows:
“19.A perusal of the above referred ruling of the Hon'ble
Apex Court would show that the finding of the criminal Court has got
a bearing on the departmental proceedings and though the decree of
proof varies, the department cannot proceed to take a different view
without showing strong reasons and circumstances to deviate from the
finding of the criminal Court. When the management has miserably
failed to prove the case against the petitioner, considering his past
conduct does not arise at all. Equally any admission said to have been
made by the petitioner before police also cannot be relied upon as the
contention of such admission cannot be taken as a conclusive proof.”
10.In the counter affidavit, except stating the involvement of the
petitioner in the criminal case pursuant to the complaint lodged by the
petitioner's ex-wife for offences punishable under Section 498A of IPC
and Section 4 of Dowry Prohibition Act, no other independent charge is
stated. In other words, the disciplinary proceedings were initiated
against the petitioner on the ground that he was arrested pursuant to the
criminal complaint and that his involvement in such criminal prosecution
is a misconduct. Even in the order of second respondent, it is admitted
that the wife has given criminal complaint immediately after the petition
for divorce was filed by the petitioner against his wife. It is also
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W.P.(MD)No.10319 of 2014
admitted that the Criminal Court, by order in C.C.No.386 of 2014, dated
26.02.2010, acquitted the petitioner from the criminal case, which was
registered at the instance of the petitioner's ex-wife. With regard to the
judgment in the criminal case, it is stated that the judgment of the
criminal case was delivered on 26.02.2010 after the appeal was dismissed
by the third respondent and that therefore, the contention of the petitioner
cannot be considered. Therefore, indirectly, it is admitted that the
punishment against the petitioner was confirmed or modified without
even considering the material facts that the petitioner was acquitted from
the criminal case.
11.The learned Government Advocate relying upon the charge
memo and the criminal complaint, submitted that the acquittal of
petitioner by the Criminal Court is not honourable and that therefore, the
Criminal Court's verdict cannot be the basis to quash the punishment
imposed on the petitioner pursuant to the disciplinary proceedings
initiated against him.
12.From the charge that was framed against the petitioner, it is
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W.P.(MD)No.10319 of 2014
seen that the petitioner's involvement in a criminal case resulting in his
arrest was the cause for framing charges. Having regard to the nature of
charge that was alleged against the petitioner, it is seen that the
misconduct is not during employment, but as a result of domestic
problem the petitioner faced with his wife. When disciplinary
proceedings were initiated against a Government employee on the basis
of a criminal complaint initiated at the instance of family members, great
care should be taken, as it was observed in one of the judgments above
referred to. It is to be seen that the petitioner's wife lodged a criminal
complaint immediately after the petitioner filed a petition for dissolution
of marriage against his wife. It is also seen that criminal offence alleged
to have been committed by the petitioner is not in the course of
employment. The charge is based on a complaint by the petitioner's ex-
wife against the petitioner.
13.In such circumstances, the department should be cautious in
taking departmental action, as they are not sure of getting the same
witnesses. When the department cannot proceed against the Government
servant independently, they cannot just ignore the verdict given by the
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W.P.(MD)No.10319 of 2014
criminal Court in relation to the offence, for which criminal prosecution
was lodged.
14.It is admitted in this case that only on the basis of criminal
complaint, the departmental action was initiated against the petitioner.
The department, therefore, cannot ignore the petitioner's acquittal by the
criminal Court after full fledged trial. There is no scope for conducting a
roving enquiry for a case like, this, where department proceeded against
the petitioner on moral grounds that the petitioner was involved in a
criminal complaint and was arrested pursuant to the criminal complaint.
Having framed the charges in that premise, the respondents appear to
have proceeded, as if the petitioner has been convicted by the criminal
Court. When the department proceeded on the basis that the petitioner
had caused some stigma to the police department by involving himself in
a criminal case, the conclusion of respondents should be based on
separate and independent evidence. The department should exhibit their
endeavour independently to find the petitioner's involvement rather than
relying upon the wife's complaint, which was also the basis for
registering the criminal case against the petitioner. When the petitioner
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W.P.(MD)No.10319 of 2014
has been acquitted by criminal Court, the findings during departmental
action cannot be based on surmises and conjunctures in a case of this
nature, when the misconduct is not in connection with employment.
15.When the department is concerned about the conduct outside
the employment of the petitioner or his involvement in a criminal case,
this Court is of the view that the petitioner should be discharged from the
charges, once the criminal Court acquitted the petitioner from the
criminal charges, as it was decided by the Honourable Supreme Court in
Roop Singh Negi vs Punjab National Bank and others, reported in
(2009) 2 SCC 570.
16.In this case, the appellate authority or review authority and
the first respondent had passed the order without assigning reasons for
accepting the order of disciplinary authority. It is pertinent to mention
that the second respondent while modifying the punishment has rendered
a finding that the criminal complaint was lodged under suspicious
circumstances. Having noted the very integrity of the complainant, no
further reason is assigned by the second respondent for imposing the
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W.P.(MD)No.10319 of 2014
punishment of black mark.
17.In view of the discussion above, this Court is unable to
sustain the order of disciplinary authority and other respondents in
exercise of powers, as an appellate or reviewing authority. As a result,
this Writ Petition is allowed and the impugned orders passed by the
respondents are set aside. The respondents are directed to promote the
petitioner as Head Constable with effect from the date on which his
immediate junior was promoted, within a period of twelve weeks from
the date of receipt of a copy of this order. No costs. Consequently,
connected miscellaneous petition is closed.
Index :Yes / No 01.10.2021
Internet :Yes
tmg/cmr
https://www.mhc.tn.gov.in/judis/
W.P.(MD)No.10319 of 2014
To
1.The Principal Secretary to Government,
The State of Tamil Nadu
Home Department,
Secretariat, Chennai.
2.The Director General of Police,
Chennai - 4.
3.The Inspector General of Police
cum Commissioner,
Madurai city, Madurai.
4.Deputy Commissioner of Police,
Armed Reserve,
Madurai City, Madurai.
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W.P.(MD)No.10319 of 2014
S.S.SUNDAR, J.
tmg/cmr
Order made in
W.P.(MD)No.10319 of 2014
01.10.2021
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