Madras High Court
E.Sivanandi vs The State Of Tamil Nadu on 15 November, 2022
W.P(MD)No.7280 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.11.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.7280 of 2019
and
W.M.P.(MD)Nos.5826 and 5827 of 2019
E.Sivanandi ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Principal Secretary,
Home Department,
Secretariat,
Chennai 600 009.
2.The Director General of Police,
O/o. the Director General of Police,
Tamil Nadu, Chennai 600 004.
3.The Additional Director General of Police,
O/o. the Director General of Police,
Administration,
Chennai – 4.
4.The Deputy Inspector General of Police,
O/o. the Deputy Inspector General of Police,
Madurai Range, Madurai.
5.The Superintendent of Police,
O/o. the Superintendent of Police,
Madurai District,
Madurai. ... Respondents
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W.P(MD)No.7280 of 2019
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorari, calling for the records relating
to the impugned order passed by the 2nd respondent in his proceedings
Rc.No.076959/AP.2(3)/2018 dated 08.08.2018 confirming the order of
modification of punishment passed by the 4th respondent vide proceedings
No.C.No.A4/4069/AP./2017 R.O.No.431/2017 dated 04.11.2017 modifying the
punishment order passed by the 5th respondent vide his proceedings
F1/PR.147/2012 dated 10.12.2016 and quash the same as illegal.
For Petitioner : Ms.J.Irfana Fathima
For Respondents : Mr.A.K.Manikkam,
Special Government Pleader.
ORDER
Heard the learned counsel for the writ petitioner and the learned Special
Government Pleader for the respondents.
2.The writ petitioner joined the police department as Grade-II Police
Constable on 01.03.2002. He was promoted as Grade-I Police Constable in the
year 2012. The petitioner was issued with charge memo dated 16.11.2012
following his implication in a criminal case registered under Tamil Nadu
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W.P(MD)No.7280 of 2019
Gaming Act. An enquiry was conducted. The disciplinary authority imposed
the punishment of dismissal from service vide order dated 10.12.2016.
Questioning the same, the petitioner preferred appeal. The Appellate Authority
modified the punishment to one of postponement of increment for a period of
three years which shall operate to postpone future increments. Challenging the
same, the petitioner filed a mercy petition before the Director General of Police,
Chennai – 4. Vide order dated 08.08.2018, the Revisional Authority had
rejected the petition. Questioning these orders, the present writ petition came to
be filed.
3.The learned counsel for the petitioner reiterated all the contentions set
out in the affidavit filed in support of the writ petition and called upon this
Court to quash the impugned order and grant relief as prayed for.
4.The respondents have filed counter affidavit and the learned Special
Government Pleader took me through its contents. The learned Special
Government Pleader would point out that the writ petitioner as a member of the
uniformed force ought to have conducted himself in an appropriate manner
even when he is on leave. His implication in a gaming case has brought
disrepute to the force and that is why the authorities have taken a serious view.
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W.P(MD)No.7280 of 2019
It is true that the criminal prosecution ended in favour of the writ petitioner but
that will not tie the hands of the disciplinary authority. It is open to the
disciplinary authority to take an independent and parallel action even during the
pendency of the criminal case. He called upon this Court to sustain the
impugned order and dismiss the writ petition.
5.I carefully considered the rival contentions and went through the
materials on record. The occurrence had taken place on 17.08.2012 when the
petitioner was admittedly on leave. The petitioner was implicated in Crime
No.224 of 2012 on the file of Usilampatti Taluk Police Station for the offence
under Section 420 of IPC r/w. Section 12 of the Tamil Nadu Gaming Act. The
petitioner figured as Accused No.6 in the said case. The case was charge
sheeted and taken on file as C.C.No.291 of 2012 on the file the learned Judicial
Magistrate No.I, Usilampatti. It is no doubt true that the disciplinary authority
can proceed with the departmental action even during the pendency of the
criminal case. This power of the disciplinary authority cannot be curtailed. The
articles of charge framed against the writ petitioner were as follows:-
“Fw;wrhl;L-1 gpiHahsh; vGkiy fhty; epiyaj;jpy; njrpa
beLQ;rhiy nuhe;J gzp IV d; Xl;Leuhf gzpg[hpe;J tUifapy;>
fle;j 17.08.2012 njjp ,ut[ 22.00 kzpf;F crpyk;g;lo jhY}f
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W.P(MD)No.7280 of 2019
fhty; epiya bgz; rhh;g[ Ma;thsh; jpUkjp.bre;jhkiu> rpw;g;g[ rhh;g[
Ma;thsh; jpU.ypq;frhkp> j.fh.1277 ghy;Jiu> fh.1112
mUtf;bfho kw;Wk; j.fh.1014 mwptHfd; Mfpnahh; crpyk;g;lo
jhY}f fhty; epiya vy;iyapy; Fw;w jLg;g[ rk;ke;jkhf nuhe;J
bra;J fz;fhzpj;J te;j nghJ> nkf;fpyhh;gl;o kahd mUfpy; cs;s
kpd; btspr;rj;ij gad;gLj;jp gpiHahsh; kw;Wk; Ch; bgah; bjhpe;j
1) uhIq;fk; 2) khh;f;fz;ld; 3)re;jhdk; 4)Fkhh; 5)bIaghz;o
6)MWKfk; 7)uhnIe;jpud; kw;Wk; gpiHahsUld; nrh;e;J 8 egh;fs;
xd;W nrh;e;J “bIapf;F njhf;FJ” vd xUtiu xUth; Vkhw;wp
nkhro nehf;fpy; “kq;fhj;jh” vd;w btl;L rPl;L tpisahoa[k;>
mth;fsplkpUe;J 52 rPl;Lfs;> gzk; U:.1>14>320/-> 3 ,Urf;fu
thfdk; kw;Wk; 8 bkhigy;nghd;fs; ifg;gw;wp ifJ bra;J
crpyk;g;lo jhY}f fhty; epiya Fw;w vz;:224/2012
gphpt[ 420 ,jr kw;Wk; 12 of TNG Act-d;go tHf;F
gjpt[ bra;ag;gl;L ePjpkd;w fhtYf;F cl;gLj;jg;gl fhuzkhapUe;j
fz;of;fj;jf;f flik bewp jtwpa xGf;F Fiwthd elj;ij.
Fw;wrhl;L-2 gpiHahsh; njrpa beLQ;rhiy nuhe;Jgzp IV y;
vLg;g[ gzp Xl;Leuhf gzpg[hpe;J tUifapy;> fle;j 17.08.2012
md;W gzpKoj;J Xa;t[ neuj;ij gads;sjhf brytplhky; Jiwf;F
vjpuhf rl;l tpnuhjkhf R{jhl;lj;jpy; <Lgl;Lk;> R{jhl;lj;jpd;
nghJ gpiHahshplkpUe;J kl;Lk; gzk; U:.25>000 mg;ghr;rp igf;
TN 58 AC 5822 kw;Wk; rhk;rq; bry; Mfpait ifg;gw;w
fhuzkhapUe;j ,r;bray; gpiHahsh; rl;l tpnuhjkhf R{jhl;lj;jpy;
<Lgl;L Jiwf;F bghJkf;fs; kj;jpapy; fsq;fj;ij Vw;gLj;jf;
fhuzkhapUe;j jd; flik bewp jtwpa xHf;F Fiwthd elj;ij.”
6.The enquiry officer came to the conclusion that the first charge was not
proved. As rightly pointed out by the learned counsel for the writ petitioner,
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W.P(MD)No.7280 of 2019
when the first charge was held as not proved, the second charge could not have
been held as proved. Be that as it may, the disciplinary authority chose to come
to the conclusion that the first article of charge was also proved. The
disciplinary authority is not bound by the finding of the enquiry officer. He can
very well take a contra view. But where the disciplinary authority differs from
the finding of the enquiry officer which was in favour of the delinquent, the
delinquent ought to have been put on notice. In this case, without doing so, the
disciplinary authority has straightaway held that the first article of charge also
stood proved. This is a clear violation of principles of natural justice.
7.As already noted, the second article of charge cannot be divorced from
the first article of charge. They are linked to one another like Siamese twins.
Therefore, an adverse finding cannot be rendered in respect of the second
charge alone.
8.The criminal case ended in acquittal on 17.05.2017. I carefully went
through the contents of the entire judgment. It is not as if the petitioner was let
of the hook merely on benefit of doubt. On the other hand, the petitioner had
specifically suggested that he has been falsely implicated on account of prior
motive with one Arivalagan who was examined as P.W.4. The said Arivalagan
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W.P(MD)No.7280 of 2019
was working in the Special Branch of the Superintendent of Police. The trial
magistrate found some merit in the suggestion putforth by the writ petitioner.
That apart, it must be shown that the offending act took place in a public place.
There is nothing on record to show that the offending act took place in a public
place. Taking note all these aspects, the trial Court passed the judgment of
acquittal. The disciplinary action was initiated against the writ petitioner only
following his implication in a criminal case. When the Criminal Court has
rendered judgment of acquittal on merits in favour of the writ petitioner, the
disciplinary action stands totally undermined.
9.For the forgoing reasons, the impugned orders are liable to be set aside.
They are accordingly set aside and the writ petition is allowed. The petitioner is
entitled to all the consequential monetary benefits. No costs. Consequently,
connected miscellaneous petitions are closed.
15.11.2022
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis
W.P(MD)No.7280 of 2019
G.R.SWAMINATHAN, J.
ias
To:-
1.The Principal Secretary,
Home Department,
Secretariat,
Chennai 600 009.
2.The Director General of Police,
O/o. the Director General of Police,
Tamil Nadu, Chennai 600 004.
3.The Additional Director General of Police,
O/o. the Director General of Police,
Administration,
Chennai – 4.
4.The Deputy Inspector General of Police,
O/o. the Deputy Inspector General of Police,
Madurai Range, Madurai.
5.The Superintendent of Police,
O/o. the Superintendent of Police,
Madurai District,
Madurai.
W.P(MD)No.7280 of 2019
15.11.2022
https://www.mhc.tn.gov.in/judis
