Paramasivam vs The Director General Of Police
2022 Latest Caselaw 16744 Mad

                                                                                    W.P.No.1353 of 2017

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 20.10.2022

                                                         CORAM

                              THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                                 W.P.No.1353 of 2017

                     Paramasivam                                                ... Petitioner

                                                            Vs.

                     1.The Director General of Police,
                       Tamil Nadu, Chennai – 4.

                     2.The Deputy Inspector General of Police,
                       Trichy Region, Trichy.

                     3.The Superintendent of Police,
                       Ariyalur.

                     4.The Deputy Superintendent of Police
                       Perambalur Sub-Division,
                       Perambalur.                                              ... Respondents

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India for
                     issuance of a Writ of Certiorarified Mandamus, calling for the records
                     relating to the order of dismissal from service passed by the 3rd respondent in
                     Na.Ka.Pa.A3/ T.P. No.24/2008 dated 04.03.2014 as modified by the 1 st
                     respondent in his proceeding bearing Rc.No.163136/ AP.IV (1)/ 2015 dated
                     30.10.2016 and set aside the same and consequently direct the 3 rd
                     respondent to reinstate the petitioner in service with back wages and other
                     service benefits including seniority in service.

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                                                                                         W.P.No.1353 of 2017

                                        For Petitioner            : Mr.A.Sirajudeen
                                                                    Senior Counsel
                                                                    For Mr.J.Deliban

                                        For Respondents           : Mr.S.Rajesh
                                                                    Government Advocate


                                                             ORDER

The punishment of compulsory retirement is under challenge in the

present writ petition.

2. The petitioner joined as Grade-II Police Constable on 10.12.1988 in

Tamil Nadu Police Service. He was promoted as Grade-I Constable on

01.10.1999 and further, promoted as Head Constable on 01.10.2004.

3. The petitioner states that on 28.03.2008 at 7:30 a.m. in his absence

from his house, his wife Smt.Mythili was found in a pool of blood and she

succumbed to the injuries suffered by her. One Mr.Annathurai, distant

relative, who used to visit his house frequently was also not available in the

house. On a report lodged by the son of the petitioner Mr.Vinoth, the

Ariyalur Police Station registered a Criminal Case in Crime No.202 of 2008

for an offence under Section 302 I.P.C. and commenced investigation. The

Investigating Officer suspected the involvement of Mr.Annathurai in the

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offence. Subsequently, the said Mr.Annathurai had surrendered before the

Metropolitan Magistrate, Saidapet, Chennai and remanded to judicial

custody. The petitioner was acquitted from the Criminal Case in S.C.No.77

of 2012 and no appeal was preferred against the order of acquittal and

therefore, the judgment became final.

4. The departmental disciplinary proceedings were initiated against the

writ petitioner and the charge against the writ petitioner is that he had

abetted for commission of Crime of murder of Section 302 I.P.C. and

further, the petitioner has not co-operated with the Investigating Officer for

the purpose of arresting one Mr. Annathurai, who was also an accused in the

Criminal Case. The petitioner submitted his explanations and defended his

case. An Enquiry Officer was appointed, who in turn, conducted an

elaborate enquiry by affording opportunity to the writ petitioner. The

Enquiry Officer found that the charge against the writ petitioner was held

proved. The findings of the Enquiry Officer was accepted by the Disciplinary

Authority and final order was passed, imposing the penalty of dismissal

from service. The petitioner preferred an Appeal before the Deputy Inspector

General of Police, Trichy. The Appellate Authority modified the punishment

and imposed the punishment of Compulsory Retirement. Challenging the

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said punishment, the petitioner has chosen to file the present writ petition.

5. The learned Senior Counsel appearing on behalf of the writ

petitioner mainly contended that it is the case of no evidence. The learned

Senior Counsel for the petitioner drew the attention of this Court with

reference to the findings in the judgment of the Criminal Court of Law in

S.C.No.77 of 2012 dated 05.12.2013. Relying on the findings in the

judgment of the Criminal Case, the learned Senior Counsel made a

submission that there was no evidence to establish the offence against the

writ petitioner and he was acquitted from the Criminal Case and therefore,

the different view taken by the Departmental Disciplinary Authority is

perverse and liable to be set aside.

6. The learned Senior Counsel appearing on behalf of the petitioner is

of an opinion that findings and observations made in the judgment of the

Criminal Court in S.C.No.77 of 2012 is to be taken into consideration for the

purpose of proving the offence against the writ petitioner and therefore, the

different opinion formed by the Department is not based on any evidence

and consequently, the punishment is liable to be set aside.

7. To substantiate the contentions, the learned Senior Counsel

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appearing on behalf of the petitioner contended that the Criminal Court of

Law found that the accused was not available at the scene of crime during

the commission of the offence. During the course of trial, the witnesses have

retracted their own statements and have turned hostile and did not support

prosecution. One witness Loganathan deposed that Annathurai did not have

the capacity to commit the offence of such magnitude. Either the accused

should have committed this murder or under his instigation, the said

Annathurai should have committed this murder. The findings in the

judgment of the Criminal Court further states that there is no evidences in

this case as to the plea of conspiracy on the part of the accused. Accordingly,

the Criminal Court of Law extended the benefit of doubt in favour of the

accused and acquitted.

8. Relying on the findings, the learned Senior Counsel appearing on

behalf of the petitioner reiterated that there cannot be any different view in

the departmental disciplinary proceedings and therefore, the punishment is

untenable.

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9. The learned Government Advocate appearing on behalf of the

respondents objected the said contention by stating that the petitioner, who

was serving in the disciplined force involved in a Criminal Case and

committed a grave offence. Thus, he was placed under suspension and a

charge memo in PR.24/2008 under Rule 3(b) of the Tamil Nadu Police

Subordinate Service (Discipline and Appeal) Rules, 1955. The Enquiry

Officer was appointed, who in turn, elaborately conducted an enquiry by

examining the witnesses and scrutinizing the documents and affording an

opportunity to the writ petitioner and submitted his report. The Enquiry

Officer examined 10 prosecution witnesses and 10 documents and formed

an opinion that the charges against the writ petitioner are held proved.

Accordingly, the Disciplinary Authority imposed the punishment of

dismissal from service to the petitioner on 04.03.2014. The Appeal filed by

the petitioner was considered and the punishment of dismissal from service

was modified to that of compulsory retirement.

10. The respondents have stated that though the petitioner did his para

duty at the Police Station on the occurrence date and time, the writ

petitioner's offences of conspiracy of murder on his wife amply proved

through the substantial evidences before the Enquiry Officer. The writ

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petitioner has suspected the fidelity of his wife and often discussed about his

wife's character and activities with Annathurai, who is the occupant in his

house and distant relative. He is unable to bear the immoral activities of his

wife, he planned to kill her through Annathurai. In the above background,

the said Annathurai killed petitioner's wife only in the absence of writ

petitioner. After completion of the assignment given by the writ petitioner,

the said Annathurai fled from the scene of occurrence. Therefore, the writ

petitioner was prosecuted for the offences. The Criminal Case against the

petitioner ended with an order of acquittal on the ground that witnesses

turned hostile. Thus, the benefit of doubt extended by the Criminal Court of

Law is not a ground to grant exoneration from the departmental disciplinary

proceedings. There is no bar for the authorities to continue the departmental

disciplinary proceedings even during the pendency of the Criminal Case.

11. This Court is of the considered opinion that the procedures to be

adopted for departmental disciplinary proceedings and the Criminal Court of

Law are distinct and different. An acquittal in a Criminal Case would not be

a ground to seek exoneration from the departmental disciplinary

proceedings. Strict evidence is required to convict a person under the

Criminal Court of Law. However, no such strict proof is required to punish a

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Government employee under the Discipline and Appeal Rules.

Preponderance of probabilities are sufficient to punish an employee. Even

moral turpitude is sufficient to impose penalty under the Discipline and

Appeal Rules. Therefore, the findings of the Criminal Court in its judgment

may not be considered for the purpose of exonerating an employee from the

departmental disciplinary proceedings.

12. In the present case, perusal of the Criminal Court judgment reveals

that the main witnesses turned hostile. When the witnesses turned hostile

during the trial before the Criminal Court of Law and based on the benefit of

doubt, the accused was acquitted from the Criminal charges, the same

yardstick need not be followed by the Disciplinary Authority in the

departmental disciplinary proceedings. In the departmental disciplinary

proceedings, the witnesses were examined independently and the Enquiry

Officer categorically made a finding that the charges against the writ

petitioner are held proved. The entire conduct with reference to the facts

were considered by the Enquiry Officer in his findings. When the findings of

the Enquiry Officer is independent and based on the witnesses examined by

him during the departmental enquiry, then there is no reason to refer the

judgment of the Criminal Court of law for the purpose of granting

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exoneration from the departmental disciplinary proceedings.

13. In the present case, the Disciplinary Authority imposed the penalty

of dismissal from service. No doubt, the proved charges against the writ

petitioner are grave in nature and relating to murder of his wife. Various

facts and circumstances considered by the Enquiry Officer based on the

deposition of the witnesses reveals that there is no reason to exonerate the

petitioner from the departmental disciplinary proceedings and thus, the

Enquiry Officer rightly formed an opinion that the charges against the writ

petitioner are held proved. Accepting the findings, the Disciplinary Authority

imposed the penalty of dismissal from service. However, on appeal, the

second respondent/Appellate Authority took a lenient view and modified the

punishment as Compulsory Retirement.

14. Thus, this Court is of the considered opinion that the Appellate

Authority has already considered the grounds raised by the petitioner in his

appeal and took a lenient view and accordingly, modify the punishment of

dismissal from service to that of compulsory retirement. Therefore, no

further consideration is required from the hands of this Court.

15. The power of judicial review under Article 226 of the Constitution

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of India is to ensure the processes, through which, a decision is taken by the

competent authority in consonance with the rules in force, but not the

decision itself.

16. In the present case, the departmental disciplinary proceedings

were conducted by following the procedures as contemplated and there is no

infirmity. The petitioner was afforded with an opportunity to defend his

case. The Disciplinary Authority imposed the punishment of dismissal from

service for the proved charges, which all are undoubtedly grave in nature.

However, the Appellate Authority modified the punishment as Compulsory

Retirement and therefore, the punishment, which is challenge in the present

writ petition cannot be construed as disproportionate or excessive. Thus, this

Court is not inclined to interfere with the order of punishment.

17. Accordingly, the Writ Petition stands dismissed. No costs.

20.10.2022

Jeni/kak Index : Yes Speaking order

To

https://www.mhc.tn.gov.in/judis W.P.No.1353 of 2017

1.The Director General of Police, Tamil Nadu, Chennai – 4.

2.The Deputy Inspector General of Police, Trichy Region, Trichy.

3.The Superintendent of Police, Ariyalur.

4.The Deputy Superintendent of Police Perambalur Sub-Division, Perambalur.

https://www.mhc.tn.gov.in/judis W.P.No.1353 of 2017

S.M.SUBRAMANIAM, J.

Jeni/kak

W.P.No.1353 of 2017

20.10.2022

https://www.mhc.tn.gov.in/judis