Madras High Court
P.Neethimohan vs The Director General Of Police on 12 December, 2022
W.P.(MD)No.2196 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 12.12.2022
CORAM
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.2196 of 2020
and
W.M.P(MD) No.1848 of 2020
P.Neethimohan ... Petitioner
Vs.
1. The Director General of Police
Chennai – 600 004.
2. The Additional Director General of Police,
(Law & Order)
Chennai – 600 004.
3. The Commissioner of Police,
Trichy City.
4. The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Trichy. ... Respondents
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Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of Writ of Certiorarified Mandamus, calling for the
records from the 1st respondent in his proceedings in
Rc.No.179051/AP.IV(1)/2018 dated 05.03.2019, by confirming the order of
the 2nd & 3rd respondents in their proceedings in Rc.No.022258/AP.IV/2018
dated 18.05.2018 and C.No.H1/PR28/2014 dated 17.01.2018 respectively
and quash the same.
For Petitioner : Mr. N.Sathish Babu
For Respondents : Mr. G.Vairam Santhosh,
Additional Government Pleader
ORDER
Aggrieved against the order of removal from service passed by the 3rd
respondent as confirmed by respondents 1 and 2 vide the impugned
proceedings, the petitioner has come up with the present petition assailing
the said order.
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2. The petitioner was appointed as Sub Inspector of Police by direct
recruitment and after successful completion of training was posted at
Pochampalli Police Station, Dharmapuri District. The petitioner was
thereafter transferred to various stations and upon promotion as Inspector of
Police, was posted at Singampunari Police Station, Sivagangai District.
While he was working as Inspector of Police at City Crime Branch, Trichy
City, on the complaint given by one Sarojini relating to certain illegal acts
being committed by the petitioner, a trap was laid on 15.12.2012 in which
the petitioner was caught red-handed resulting in registration of crime in
Crime No.4 of 2012 against the petitioner under Section 7 of the Prevention
of Corruption Act, 1988. Consequent upon the trap, the home and personal
safe deposit locker of the petitioner, maintained at Indian Bank, Ponnagar
Branch, Trichy, was searched which resulted in confiscation of certain
material documents.
3. Pursuant to the above, a charge memo was issued alleging four
charges against the petitioner. One of the charge related to the purchase of a
house by the petitioner at D.No.22, Joshwa Street, Singarayar Nagar,
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Karumandabam, Trichy, for a consideration of Rs.14,95,000/- in the name of
his wife Ananthi which was registered in Doc.No.3365 of 2008, without
obtaining permission of the competent authority, which is in violation of
Rule 9(1) of the Tamil Nadu Subordinate Police Officers Conduct Rules,
1964. The next charge related to obtainment of vehicle loan to the tune of
Rs.3,00,000/- from Indian bank, Ponnagar Branch, Trichy for the purchase
of a Maruthi Swift Dzire Car bearing Registration No.TN45 AU 4889 for a
sum of Rs.6,45,739/- in the petitioner's name, without obtaining prior
permission from the competent authority in violation of the rules and the
third charge is that during the period from 06.10.2011 to 15.02.2012, the
petitioner failed to record the diary entries, which is in gross negligence and
dereliction of duty and that the petitioner kept the case properties, viz., cash
to the tune of Rs.87,764/-; 196 numbers of counterfeit currency notes of
Rs.500/- denomination; and retention of foreign passports in the name of
Nigerian nationals and 3 numbers of foreign currency kept in the personal
safe deposit locker of the petitioner, which offences related to Trichy City
CCB Crime No.9 of 2003, CCB Crime No.5 of 2010 and CCB Crime No.14
of 2010. The reprehensible conduct and lack of integrity and honesty
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resulted in the initiation of departmental proceedings against the petitioner,
and enquiry was conducted leading to submission of report on 19.04.2017.
Pending action on the enquiry officer's report, the petitioner attained the age
of superannuation on 31.03.2018 at which point the petitioner was allowed
to retire from service without prejudice to the pending departmental
proceedings by invoking the relevant provision in the service rule. The
disciplinary authority/third respondent, thereafter, after providing the
petitioner with a copy of the enquiry report, which held the charges levelled
against the petitioner as proved, and upon receipt of explanation of the
petitioner, vide proceedings dated 17.10.2018 imposed the punishment of
removal from service with immediate effect on the petitioner. The petitioner
unsuccessfully challenged the same before the appellate and revisional
authority ultimately leading to filing of the present writ petition assailing
the said punitive order.
4. Learned counsel appearing for the petitioner submitted that the
charges levelled against the petitioner with regard to the petitioner not
obtaining prior permission for the purchase of house and also the loan for
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purchase of a car cannot be said to be offences which warrants the extreme
punishment of removal from service, as the said allegations are mere
procedural infractions of the service rule, which could very well be cured by
way of post-facto approval of the competent authority as the the said
allegations cannot be said to be so grave in nature. It is the further
submission of the learned counsel that insofar as the charge against the
petitioner keeping certain case properties in the safe deposit locker
maintained by him in his personal capacity, it has been the stand of the
petitioner that for want of safety locker at the police station, considering the
crucial nature of the documents related to the aforesaid crime numbers, only
as a matter of precaution, the petitioner had kept the case properties in his
personal locker and no other motive has been attributed against the
petitioner with regard to retention of the case properties in his personal
locker. The aforesaid retention of case properties being the off-shoot of
other charges and also the trap, the said trap is nothing but an engineered
one at the behest of the complainant, only to prejudice the department
against the acts of the petitioner, which was without any motive or malice
and, therefore, the allegations levelled against the petitioner cannot be said
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to be of such a nature that it warrants the punishment of removal from
service, which is not only disproportionate to the gravity of the charges, but
also shocks the judicial conscience and necessarily the said punishment
deserves to be interfered with, as otherwise, it deprives the petitioner of the
retiral benefits to which he is entitled to, more so considering the long and
unblemished service rendered by the petitioner.
5. The learned Additional Government Pleader appearing for the
respondents submitted that pursuant to the charge memo dated 30.09.2014
containing 4 charges, enquiry was conducted resulting in the tabling of the
enquiry report on 19.04.2017 and the disciplinary authority, having agreed
with the findings of the enquiry authority, upon calling for explanation, after
fulfilling all the formalities, has awarded the punishment which is
commensurate with the gravity of the charges levelled against the petitioner.
The appeal preferred by the petitioner befoe the Additional Director General
of Police, Chennai on 16.02.2018 was rejected on 18.05.2018 and the mercy
petition was also unsuccessfully filed before the Director General of Police,
Chennai, resulting in the proceedings dated 05.03.2019. It is therefore the
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submission of the learned Addl. Government Pleader that all the aforesaid
authorities, having carefully considered the delinquency of the petitioner,
have thought it fit to impose the punishment of dismissal from service, this
Court, in exercise of its inherent jurisdiction shall not interfere with the said
punishment unless it is grossly disproportionate and shocks the conscience
of this Court, as has been held in a catena of decisions. The punishment
imposed on the petitioner is neither excessive nor disproportionate, but well
considered considering the gravity of the charges, which necessitates the
imposition of punishment, more so when the petitioner is a member of the
disciplined force. Therefore, no interference is warranted with the
punishment imposed on the petitioner. Accordingly, he prayed for dismissal
of the writ petition.
6. Heard the learned counsel on either side and perused the materials
available on record.
7. The Hon'ble Supreme Court, in B.C. Chaturvedi – Vs - Union of
India, (1995 (6) SCC 749), while dealing with issue relating to the power
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of the Court relating to judicial review of the order passed by the
disciplinary authority, held as under :
“12. Judicial review is not an appeal from a decision but a
review of the manner in which the decision is made. Power of
judicial review is meant to ensure that the individual receives
fair treatment and not to ensure that the conclusion which the
authority reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned to determine
whether the inquiry was held by a competent officer or whether
rules of natural justice are complied with. Whether the findings
or conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has jurisdiction, power
and authority to reach a finding of fact or conclusion. But that
finding must be based on some evidence. Neither the technical
rules of Evidence Act nor of proof of fact or evidence as defined
therein, apply to disciplinary proceeding. When the authority
accepts that evidence and conclusion receives support therefrom,
the disciplinary authority is entitled to hold that the delinquent
officer is guilty of the charge. The Court/Tribunal in its power of
judicial review does not act as appellate authority to
reappreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere
where the authority held the proceedings against the delinquent
officer in a manner inconsistent with the rules of natural justice
or in violation of statutory rules prescribing the mode of inquiry
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or where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or finding be
such as no reasonable person would have ever reached, the
Court/Tribunal may interfere with the conclusion or the finding,
and mould the relief so as to make it appropriate to the facts of
each case.
13. The disciplinary authority is the sole judge of facts. Where
appeal is presented, the appellate authority has coextensive
power to reappreciate the evidence or the nature of punishment.
In a disciplinary inquiry, the strict proof of legal evidence and
findings on that evidence are not relevant. Adequacy of evidence
or reliability of evidence cannot be permitted to be canvassed
before the Court/Tribunal. In Union of India v. H.C. Goel
[(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this
Court held at p. 728 that if the conclusion, upon consideration of
the evidence reached by the disciplinary authority, is perverse or
suffers from patent error on the face of the record or based on no
evidence at all, a writ of certiorari could be issued.”
(Emphasis Supplied)
8. The above view has been reiterated by the Hon'ble Supreme Court
in Principal Secy. Govt. of A.P. - Vs - M. Adinarayana, (2004 (12) SCC
579), wherein, it has been held as under :-
“23. We have read this charge in the light of allegations in
support thereof. In the instant case, it is not disputed that the
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respondent has neither supplied any prior information on the
Government nor did he send any prior intimation to the
Government. By not doing this, he has contravened the
provisions of Rule 9. The Tribunal has also categorically held
that the respondent has not applied for prior information before
he purchased the items from the competent authority nor he
intimated to the competent authority forthwith soon after the
purchase of the several items. Therefore, in our view, the charged
officer has violated Rule 9 of the Conduct Rules and thus is guilty
of misconduct within Rule 2-H (sic) of the Andhra Pradesh
Disciplinary Amendment Act, 1993. In view of the abovesaid
finding we hold that respondent is guilty of both the charges
framed against him within Rule 2 (b) of the Conduct Rules of
1961 framed under the Amendment Act, 1993.
* * * * *
26. In our opinion, judicial review cannot extend to the
examination of the correctness of the charges as it is not an
appeal but only a review of the manner in which the decision was
made. We have, therefore, no hesitation in setting aside the order
of the Andhra Pradesh Administrative Tribunal and the judgment
of the Division Bench of the High Court for reasons stated
(supra). The order passed by the Government removing the
respondent from service is in order and, therefore, the appeal
filed by the appellant State stands allowed. Further, there will be
no order as to costs.”
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9. In a recent decision in the Director General of Police, RPF & Ors.
- Vs – Rajendra Kumar Dubey (C.A. No.3820/2020 dated 25.11.20), the
Hon'ble Supreme Court, adverting to the various decisions of the Apex
Court relating to the interference by the High Court in exercise of its writ
jurisdiction with respect to disciplinary proceedings, including the decision
in Chaturvedi's case (supra), held as under :-
“12.1 ...... It is well settled that the High Court must not act as
an appellate authority, and re-appreciate the evidence led before
the enquiry officer.
We will advert to some of the decisions of this Court with
respect to interference by the High Courts with findings in a
departmental enquiry against a public servant.
In State of Andhra Pradesh v S.Sree Rama Rao, a three judge
bench of this Court held that the High Court under Article 226 of
the Constitution is not a court of appeal over the decision of the
authorities holding a departmental enquiry against a public
servant. It is not the function of the High Court under its writ
jurisdiction to review the evidence, and arrive at an independent
finding on the evidence. The High Court may, however interfere
where the departmental authority which has held the proceedings
against the delinquent officer are inconsistent with the principles
of natural justice, where the findings are based on no evidence,
which may reasonably support the conclusion that the delinquent
officer is guilty of the charge, or in violation of the statutory
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rules prescribing the mode of enquiry, or the authorities were
actuated by some extraneous considerations and failed to reach a
fair decision, or allowed themselves to be influenced by
irrelevant considerations, or where the conclusion on the very
face of it is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at that conclusion. If
however the enquiry is properly held, the departmental authority
is the sole judge of facts, and if there is some legal evidence on
which the findings can be based, the adequacy or reliability of
that evidence is not a matter which can be permitted to be
canvassed before the High Court in a writ petition.
These principles were further reiterated in the State of Andhra
Pradesh v Chitra Venkata Rao. The jurisdiction to issue a writ
of certiorari under Article 226 is a supervisory jurisdiction. The
court exercises the power not as an appellate court. The findings
of fact reached by an inferior court or tribunal on the
appreciation of evidence, are not re-opened or questioned in writ
proceedings. An error of law which is apparent on the face of the
record can be corrected by a writ court, but not an error of fact,
however grave it may be. A writ can be issued if it is shown that
in recording the finding of fact, the tribunal has erroneously
refused to admit admissible and material evidence, or had
erroneously admitted inadmissible evidence. A finding of fact
recorded by the tribunal cannot be challenged on the ground that
the material evidence adduced before the tribunal is insufficient
or inadequate to sustain a finding. The adequacy or sufficiency
of evidence led on a point, and the inference of fact to be drawn
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from the said finding are within the exclusive jurisdiction of the
tribunal.
In subsequent decisions of this Court, including Union of
India v. G. Ganayutham, Director General RPF v. Ch. Sai
Babu, Chennai Metropolitan Water Supply and Sewerage
Board v T.T. Murali, Union of India v. Manab Kumar Guha,
these principles have been consistently followed.
In a recent judgment delivered by this Court in the State of
Rajasthan & Ors. v. Heem Singh this Court has summed up the
law in following words :
“33. In exercising judicial review in disciplinary matters,
there are two ends of the spectrum. The first embodies a rule of
restraint. The second defines when interference is permissible.
The rule of restraint constricts the ambit of judicial review. This
is for a valid reason. The determination of whether a misconduct
has been committed lies primarily within the domain of the
disciplinary authority. The judge does not assume the mantle of
the disciplinary authority. Nor does the judge wear the hat of an
employer. Deference to a finding of fact by the disciplinary
authority is a recognition of the idea that it is the employer who
is responsible for the efficient conduct of their service.
Disciplinary enquiries have to abide by the rules of natural
justice. But they are not governed by strict rules of evidence
which apply to judicial proceedings. The standard of proof is
hence not the strict standard which governs a criminal trial, of
proof beyond reasonable doubt, but a civil standard governed by
a preponderance of probabilities. Within the rule of
preponderance, there are varying approaches based on context
and subject. The first end of the spectrum is founded on
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deference and autonomy – deference to the position of the
disciplinary authority as a fact finding authority and autonomy
of the employer in maintaining discipline and efficiency of the
service. At the other end of the spectrum is the principle that the
court has the jurisdiction to interfere when the findings in the
enquiry are based on no evidence or when they suffer from
perversity. A failure to consider vital evidence is an incident of
what the law regards as a perverse determination of fact.
Proportionality is an entrenched feature of our jurisprudence.
Service jurisprudence has recognized it for long years in
allowing for the authority of the court to interfere when the
finding or the penalty are disproportionate to the weight of the
evidence or misconduct. Judicial craft lies in maintaining a
steady sail between the banks of these two shores which have
been termed as the two ends of the spectrum. Judges do not rest
with a mere recitation of the hands-off mantra when they
exercise judicial review. To determine whether the finding in a
disciplinary enquiry is based on some evidence an initial or
threshold level of scrutiny is undertaken. That is to satisfy the
conscience of the court that there is some evidence to support
the charge of misconduct and to guard against perversity. But
this does not allow the court to re-appreciate evidentiary
findings in a disciplinary enquiry or to substitute a view which
appears to the judge to be more appropriate. To do so would
offend the first principle which has been outlined above. The
ultimate guide is the exercise of robust common sense without
which the judges’ craft is in vain.”
In Union of India v. P. Gunasekaran, this Court held that the
High Court in exercise of its power under Articles 226 and 227 of
the Constitution of India shall not venture into re-appreciation of
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the evidence. The High Court would determine whether : (a) the
enquiry is held by the competent authority; (b) the enquiry is held
according to the procedure prescribed in that behalf; (c) there is
violation of the principles of natural justice in conducting the
proceedings; (d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations which are
extraneous to the evidence and merits of the case; (e) the
authorities have allowed themselves to be influenced by
irrelevant or extraneous considerations; (f) the conclusion, on
the very face of it, is so wholly arbitrary and capricious that no
reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence; (h) the disciplinary authority
had erroneously admitted inadmissible evidence which
influenced the finding; (i) the finding of fact is based on no
evidence.
In paragraph 13 of the judgment, the Court held that :
“13.Under Articles 226 / 227 of the Constitution of India, the
High Court shall not :
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in the case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based;
(vi) correct the error of fact however grave it may appear to
be;
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(vii) go into the proportionality of punishment unless it
shocks its conscience.”
(Emphasis Supplied)
10. From the ratio laid down above, it is implicitly clear that the
Courts, in exercise of its power of judicial review, cannot extend the
examination to the correctness of the act of the disciplinary authority, but
only limit itself to the manner in which the decision has been arrived at by
the authorities and whether the same is in accordance with law. This Court
is to test only the correctness of the decision arrived at by the authorities on
the basis of the evidence before it and not proceed with the case as if it is an
appeal against the impugned order.
11. In the case on hand, the petitioner is neither attacking the manner
in which the enquiry was conducted as flawed and not in accordance with
law nor the petitioner claims any relief on the touchstone of violation of
principles of natural justice. The enquiry has not been attacked in any
manner by the petitioner, but the stand of the petitioner is only that the
gravity of the charges alleged against the petitioner does not call for the
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extreme punishment of removal from service, thereby denying the petitioner
of all the benefits to which he is otherwise entitled to, considering his
otherwise long and unblemished service.
12. Therefore, the only issue that is left for the consideration of this
Court is the extent to which this Court could interfere with the punishment
imposed on a delinquent under Article 226 of the Constitution.
13. It has been the consistent view of the Courts that it is always
within the domain of the appointing authority to decide on the punishment
to be imposed on the delinquent, but the only determination that is left to the
Court is the proportionality of the punishment with regard to the gravity of
the charges that stood proved against the delinquent. Only when the
punishment is disproportionate and shocking to the conscience of the Court,
should the Courts interfere with the same in exercise of powers under Art.
226 of the Constitution. The Hon'ble Supreme Court, in Prem Nath Bali –
Vs - High Court of Delhi (2015 (16) SCC 415), has held as under:
“20. It is a settled principle of law that once the charges
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levelled against the delinquent employee are proved then it is for
the appointing authority to decide as to what punishment should
be imposed on the delinquent employee as per the Rules. The
appointing authority, keeping in view the nature and gravity of
the charges, findings of the inquiry officer, entire service record
of the delinquent employee and all relevant factors relating to the
delinquent, exercised its discretion and then imposed the
punishment as provided in the Rules.
21. Once such discretion is exercised by the appointing
authority in inflicting the punishment (whether minor or major)
then the courts are slow to interfere in the quantum of punishment
and only in rare and appropriate case substitutes the punishment.
Such power is exercised when the court finds that the delinquent
employee is able to prove that the punishment inflicted on him is
wholly unreasonable, arbitrary and disproportionate to the
gravity of the proved charges thereby shocking the conscience of
the court or when it is found to be in contravention of the Rules.
The Court may, in such cases, remit the case to the appointing
authority for imposing any other punishment as against what was
originally awarded to the delinquent employee by the appointing
authority as per the Rules or may substitute the punishment by
itself instead of remitting to the appointing authority.”
(Emphasis Supplied)
14. As already aforesaid, no attack has been mounted on the conduct
of the enquiry, which resulted in the charges being held proved against the
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delinquent. The materials available on record also reveal that the enquiry
has been conducted in accordance with law and as per the procedure
contemplated under the relevant rules, though certain discrepancies had
crept in the departmental proceedings, as highlighted before this Court by
the petitioner. However, it is to be pointed out that departmental
proceedings is not a judicial proceeding requiring stern following of all the
legal requirements and what is required in the departmental proceeding is
the compliance of procedural requirement, which, on the face of the records,
stood completely complied with and satisfactory. Though certain
discrepancies are alleged in the departmental proceedings, but the said
discrepancies in no way affects the report submitted by the enquiry officer,
which is in consonance with the rules. Once the report has been accepted
by the disciplinary authority and punishment imposed on the petitioner,
which has been unsuccessfully challenged by the petitioner before the
appellate authorities, this Court is only left with the task to determine
whether the punishment imposed on the petitioner is disproportionate to the
charges framed and shocks the conscience of the Court.
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15. To the above, it can be held without an iota of doubt that the
answer to the same cannot be in the affirmative. The punishment imposed
on the petitioner, in no way could be termed to be disproportionate to the
delinquency and further it cannot also not be said that it shocks the
conscience of this Court. The task entrusted on this Court is only to find out
whether the authorities have applied their mind to the materials before
imposing the punishment.
16. It is to be pointed out that the petitioner is a member of a
disciplined force and a great amount of integrity and honesty is required of
individuals holding the posts in the disciplined service. Not only the fate
and status of the country is in the hands of the members of the disciplined
force, but the rights and liberties of the individual citizens would be greatly
hampered if the members of the disciplined commit offences, as has been
alleged and proved against the petitioner. It would not only put the fate of
the citizens in peril, but would have a jeopardizing effect on the safety and
security of the nation and would be in detriment to the livelihood of the
citizens.
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17. Corruption is a pest, which, if left to go without being nipped in
the bud, will eat out the law and order in the nation and would have a
cascading effect in all fields and in all forms of employment. The petitioner,
being a member of a force, which is required to have the highest standards
of integrity and honesty and discipline being paramount, having thrown the
qualities to the winds, is nothing but a leech in system, who, if not removed
in entirety, will corrupt the entire force. Therefore, prudence warrants that
the disciplinary authority should take action in such a manner against such
persons, so that the others do not follow the footsteps of such individuals,
thereby, safeguarding the stature of the force.
18. In the above backdrop, this Court, on a perusal of the materials
placed is of the firm opinion that the punishment imposed on the petitioner
could in no way be said to be disproportionate and shocking to the
conscience of this Court. Interference, if any, with the punishment imposed
on the petitioner by this Court would be nothing but misplaced sympathy,
which has no room in the justice delivery system, when it is the duty of the
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Court to see that justice is not only be done but should seem to be done.
Therefore, the punishment, in the considered view of this Court is just and
reasonable and, this Court is of the opinion that no interference is warranted
with the impugned order of punishment passed by the respondents.
19. For the reasons aforesaid, this writ petition is devoid of merits
and, accordingly, the same is dismissed. However, there shall be no order as
to costs. Consequently, connected miscellaneous petition is closed.
12.12.2022
Index : Yes / No
Speaking Order : Yes / No
RM/GLN
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To
1. The Director General of Police
Chennai – 600 004.
2. The Additional Director General of Police, (Law & Order)
Chennai – 600 004.
3. The Commissioner of Police,
Trichy City.
4. The Inspector of Police,
Vigilance and Anti-Corruption Wing,
Trichy.
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M.DHANDAPANI, J.
RM
W.P.(MD)No.2196 of 2020
12.12.2022
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