Madras High Court

Kasinathan vs The Secretary To The Government on 21 March, 2022

                                                                           WP(MD)No.3432 of 2016



                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 21.03.2022

                                                      CORAM

                                  THE HONOURABLE MRS.JUSTICE S.SRIMATHY


                                           W.P.(MD).No.3432 of 2016
                                                     and
                                          W.M.P(MD) No.3047 of 2016

                 Kasinathan                                                   ... Petitioner
                                                       Vs.

                 1.The Secretary to the Government,
                   Home Department,
                   St.George Fort,
                   Chennai.

                 2.The Director General of Police,
                   Law and Order,
                   Mylapore,
                   Chennai.

                 3.The Deputy Inspector General of Police,
                   Ramanathapuram Range,
                   Ramanathapuram District.                                   ...Respondents

                 PRAYER: Petition filed under Article 226 of the Constitution of India praying to
                 issue a Writ of Certiorarified Mandamus to call for the records of the impugned



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                                                                                 WP(MD)No.3432 of 2016



                 order in G.O.(2D)No.144 Home(Police VI) Department dated 20.04.2015 passed
                 by the 1st Respondent confirming the punishment imposed by the 3rd Respondent
                 in Na.Ka.No.B1/13870/99-2 dated 22.11.1999 and quash the same as illegal and
                 consequently direct the Respondents to treat the suspension period from
                 27.04.1994 to 03.08.1998 as duty period for all purpose and to pay salary for
                 suspension period after deducting the subsistence allowance on par with the
                 favourable order issued in favour of co-delinquent in G.O.(D).No.645 dated
                 06.07.2011 passed by the 1st respondent.

                                           For Petitioner     : Mr.V.P.Rajan

                                           For Respondents    : Mr.N.Ramesh Arumugam,
                                                                Government Advocate (Civil Side).


                                                            ORDER

This Writ Petition is filed to quash the impugned order in G.O.Ms.No.

(2D)No.144 Home (Police VI) Department dated 20.04.2015 confirming the

punishment in order dated 22.11.1999 and consequently, direct the respondents to

treat the suspension period from 27.04.1994 to 03.08.1998 as duty period for all

purpose and confer all monetary benefits on par with the favourable order issued

in favour of co-delinquent in G.O.Ms.No.645 dated 06.07.2011

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2.The brief facts of the case are that the petitioner was working as Head

Constable in Thiruvidaimaruthur District. When the petitioner was working as

Head Constable in R.S. Mangalam Police Station one Mr. Vijayakumar, then

Inspector of Police arrested one Muniyandi in connection with illict arrack on

26.04.1994 and he died under the Police custody. The Revenue District Officer,

Ramanathapuram has preferred a police complaint against the petitioner and the

Inspector of Police. A criminal case was registered for the offence under Section

192,196, 201, 218, 343, 302 read with 201 & 34 I.P.C. The petitioner and the said

Vijayakumar were arrested and released on bail. Thereafter the Superintendent of

Police, Ramanathapuram District suspended the petitioner and the said

Vijayakumar. In the criminal case, the petitioner and the said Vijayakumar were

acquitted by the Principal Sessions Court, Ramanathapuram on the ground that

the deceased Muniyandi died due to Chronic Lung disease and not by the torture

of Police. In the meanwhile, the respondents issued a Charge Memo in P.R.No.

31 of 1996 and 32 of 1996, dated 17.06.1996 to the petitioner and the said

Vijayakumar respectively. The allegation in the Charge Memo is that both have

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committed dereliction of duty and demanded bribe from the deceased Muniyandi

for doing business of illicit arrack. The petitioner and the said Vijayakumar filed

O.A.No.6872 of 1996 challenging the disciplinary proceedings. The

Administrative Tribunal held that the action may be taken pursuant to the

judgment of Criminal Court. However, the respondents conducted a common

enquiry and the Enquiry Officer submitted a report holding that the charges are

proved against the petitioner and the said Vijayakumar. Pursuant to the enquiry

report, then Deputy Inspector General of Police, Ramanathapuram District, has

imposed with the punishment of reduction in time scale of pay by one stage for

one year without cumulative effect, vide order, dated 22.11.1999. The petitioner

was suspended for more than four years. After the acquittal, the petitioner

submitted a representation to the respondents requesting them to treat the

suspension period as duty period and also prayed to set aside the punishment

based on the acquittal in the criminal case.

3. The contention of the petitioner is that the co-delinquent Vijayakumar also

preferred a representation to the respondents. Since the respondents did not take

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any action, the said Vijayakumar has filed a writ petition in W.P.(MD)No.8451 of

2008 with a prayer to direct the respondents to treat his suspension period as duty

period with a consequential relief. This Court, vide order, dated 14.12.2009

directed the respondents to dispose of the representation on merits in accordance

with law. The first respondent after considering the request of the said

Vijayakumar had set aside the punishment imposed on him and also ordered to

treat the suspension period as duty period, vide G.O.(D)No.646 dated 06.07.2011.

Pursuant to the same, the petitioner has preferred various representation

requesting the respondents to set aside the punishment and treat the suspension

period as duty period, based on the order passed in favour of the co-delinquent

Vijayakumar. Since no action was taken, the petitioner has preferred a writ

petition in W.P.(MD)No.677 of 2014 and this Court, vide order, dated 10.01.2014

directed to consider the request on par with the co-delinquent. However, the first

respondent without considering the matter in a proper perspective had rejected the

petitioner's request, vide impunged order, dated 20.04.2015 stating that the

charges leveled against the petitioner and the said Vijayakumar are different and

both are standing in the different foot. The contention of the petitioner is that the

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charges against the petitioner and the co-delinquent are one and the same. The

statement of the first respondent is absolutely incorrect. Therefore, the petitioner

prayed to set aside the impugned order with a consequential relief.

4.The respondents have filed a counter affidavit stating that the charges

against the petitioner in disciplinary action and the criminal action are different.

Since there was a custodial death, the Government has ordered to take

disciplinary and criminal action against the petitioner and the said Vijayakumar.

Accordingly, the Inspector of Police, namely, Vijayakumar was dealt with on

various charges in P.R.No.31 of 1996 for his misconduct and the same is

reproduced hereunder:

“(i)reprehensible conduct in having misused official powers by threatening and beating Muniyandi on 26.04.1994 (ii) reprehensible conduct in having created a false diary and record on 26.04.1994 at R.S.Mangalam Police Station and

(iii) reprehensible conduct in having made a false statement before the R.D.O., Ramanathapuram on 19.05.2014 during PSO 145 enquiry.”

5. The petitioner was dealt in P.R.No.32 of 1996 and the allegation are

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reproduced hereunder:

“The petitioner Kasinathan was dealt with in P.R.No.32 of 1996 for his (i)reprehensible conduct in having demanded and accepted illegal gratification of Rs.300/- from one Muniyandi of Naranamangalam Village on 26.01.1994 by causing enquiry with the prohibition offenders and colluding with Tr.R.Vijayakumar, Inspector of Police, R.S.Mangalam.”

The contention of the respondents is that since the petitioner was alleged for

demanding and accepting illegal gratification of Rs.300/- (Rupees Three Hundred

only) from the said Muniyandi, the action was initiated. However, for the said

Vijayakumar, the action was initiated for misusing his Official powers by

threatening and beating Muniyandi and for creating false diary and record and for

creating the false statement. Since the charges are different, the petitioner cannot

compare with the said Vijayakumar. Hence the respondents prayed to dismiss the

writ petition.

6. Heard Mr.V.P.Rajan, learned Counsel appearing for the petitioner and

Mr.N.Ramesh Arumugam, learned Government Advocate appearing for the

respondents.

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7. On perusing the orders, especially the impugned order, dated 20.04.2015, it

is stated in Paragraph 3 as under:

“The charge framed against Thiru.R.Kasinathan in departmental action is for demanding and accepting bribe of Rs.300/- from Thiru.Muniyandi of NaramangalamVillage on behalf of Thiru.R.Vijayakumar, Inspector of Police whereas the criminal case is for the offence related to the custodial death of Thiru Muniyandi of Naramangala, Village on 26.04.1994.”

It is stated in the said order that the charge against the petitioner is for

demanding and accepting bribe on behalf of Vijayakumar, the Inspector of

Police. When the charge itself is confirmed that the petitioner has demanded and

received the money on behalf of the said Vijayakumar, this Court fails to

understand how the charges are framed against the said Vijayakumar by not

noting the fact that the bribe is demanded on behalf of Vijayakumar. The very

framing of charges itself is erroneous. When there is a specific statement by the

respondents that the petitioner demanded bribe on behalf of the said Vijayakumar,

then the said Vijayakumar is also liable for the disciplinary proceedings for

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accepting bribe. Therefore this Court is of the considered opinion that the

impugned order is liable to be quashed.

8.As far as the suspension period is concerned, if there is any acquittal the

delinquent would be entitled to regularize the period of suspension. Under Rule

54-B – Ruling 9, the delinquent is entitled to regularization of his period of

suspension and the relevant portion is extracted hereunder:

“Where a Government Servant is places under suspension in view of the fact that complaint against him of a criminal officer is under investigation or trial and the Government Servant is subsequently reinstated in service on his acquittal by the Court either on merits or on the ground that the charge against him has not been proved or by giving benefit of doubt or on any other technical ground, he must be regraded as having been prevented from discharging his duties and the period of his absence including the period of suspension shall be treated as duty for all purposes and he shall be paid full pay and allowances which he would have been entitled to, had he not been under suspension or dismissed or removed or compulsorily retired from service”

When the delinquent is acquitted of the criminal case, then the delinquent is

automatically entitled to regularize the period of suspension as duty period.

Therefore, this Court is of the considered opinion that the petitioner is entitled to

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regularize the suspension period as duty period on being acquitted from the

criminal case.

9. The contention of the petitioner that if the co-delinquent is inflicted with

lesser punishment, then the petitioner also is eligible for the same treatment. The

petitioner relied on the judgment rendered in Tata Engineering & Locomotive Co.

Ltd. Vs. Jitendra PD Singh and another reported in (2001) 10 SCC 530 and the

relevant portion is extracted hereunder:

“Since as many as three workmen on almost identical charges were found guilty of misconduct in connection with the same incident, though in separate proceedings, and one was punished with only one month's suspension, and the other was ultimately reinstated in view of the findings recorded by the Labour Court and affirmed by the High Court and the Supreme Court, it would be denial of justice to the appellant if he and the Supreme Court, it would be denial of justice to the appellant if he alone is single out for punishment by way of dismissal from service.”

10.Therefore, this Court set aside the impugned order G.O.(2D)No.144

Home(Police VI) Department dated 20.04.2015 and also set aside the punishment

imposed in Na.Ka.No.B1/13870/99-2 dated 22.11.1999. The respondents are

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directed to regularize the suspension period from 27.04.1994 to 03.08.1998 as

duty period and pay the salary payable to the petitioner and such exercise shall be

completed within a period of four weeks from the date of receipt of the copy of

the order.