Madras High Court
B.Gengan vs The Director General Of Police on 13 September, 2022
W.P.No.26474 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.26474 of 2017
B.Gengan ... Petitioner
Vs.
1.The Director General of Police,
Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police,
Kancheepuram Range, Kancheepuram.
3.The Superintendent of Police,
District Police Officer,
Kanchipuram District,
Kanchipuram. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, to call for the records
pertaining to the order of the first respondent herein passed in his Rc. No.
108753/ AP.I (2)/2014 dated 05.01.2017 imposing a modified punishment
of compulsory retirement from service and the consequential order of the
third respondent herein passed in his C.No.J1/PR.10/2011, D.O.
No.49/2017 dated 01.02.2017 and the further consequential order passed
by the second respondent herein in his C.No.B2/ 8475/2012, R.O.
No.63/2017 dated 22.05.2017 settling the period of suspension as eligible
leave including EOL and the consequential order passed by the third
respondent herein in his C.No.J1/P.R.10/2012, D.O.372/2017 dated
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01.06.2017 and quash the same and consequently direct the respondents
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W.P.No.26474 of 2017
herein to allow the petitioner to retire from service with effect from
30.06.2014 by treating the period of suspension from 24.07.2011 to
17.04.2014 as duty for all purposes with all consequential retirement
monetary benefits.
For Petitioner : Mr.Ravi Shanmugam
For Respondents : Mr.B.Vijay
Additional Government Pleader
ORDER
The order impugned modifying the punishment of dismissal from
service as that of compulsory retirement is under challenge in the present
writ petition.
2. The petitioner was holding the post of Sub-Inspector of Police
and retired from service. The petitioner was placed under suspension,
while he was in service on 23.07.2011, on the ground that he had involved
in a Criminal Case in Crime No.588 of 2010.
3. The learned counsel for the petitioner contended that the criminal
charges against the writ petitioner was based on the complaint given by
his own son, stating that his signature was forged by the petitioner, who is
none other than the father of the defacto complainant. The charge sheet
was filed in C.C.No.123 of 2011 before the Learned Judicial Magistrate-II,
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Kanchipuram on 10.06.2011 and the petitioner was convicted by the
W.P.No.26474 of 2017
Learned Judicial Magistrate-II, Kanchipuram by judgment dated
17.03.2014 and sentenced to undergo Rigorous Imprisonment for three
years with fine of Rs.15,000/- was imposed.
4. Pursuant to the order of conviction, the Deputy Inspector General
of Police, Kancheepuram Range had issued a show cause notice as to why
the petitioner should not be imposed a punishment of dismissal from
service based on the conviction in show cause notice dated 01.04.2014.
Consequently, the punishment of the dismissal from service was imposed
on the petitioner in proceedings dated 17.04.2014.
5. The petitioner preferred a Criminal Appeal No.3 of 2014 and the
Learned Sessions Judge, Kanchipuram had acquitted the petitioner
honourably in vide judgment dated 31.08.2015. Based on the order of
acquittal, the petitioner preferred an Appeal Petition to the Director
General of Police and made a request to allow him to retire from service
with effect from 30.06.2014, the date of superannuation. The Appeal
Petition filed by the petitioner in this regard on 23.09.2015 was disposed
of by the Director General of Police in proceedings dated 05.01.2017,
modifying the punishment of dismissal from service to that of compulsory
retirement.
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W.P.No.26474 of 2017
6. Subsequently, the period of suspension was regularised as EOL
based on the Fundamental Rules. The Superintendent of Police,
kanchipuram has issued a consequential order, treating the period of
suspension as Eligible Leave including EOL in proceedings dated
01.06.2017.
7. The learned counsel for the petitioner mainly contended that the
punishment of dismissal from service was imposed against the writ
petitioner under Rule 3 (c)(i)(1) of the Tamil Nadu Police Subordinate
Service (Discipline and Appeal) Rules, 1955. Since the punishment of
dismissal from service was imposed based on the order of conviction by
the Competent Criminal Court of Law, the said punishment cannot be
modified by the competent authority in an Appeal Petition filed by the writ
petitioner to set aside the punishment of dismissal from service.
8. The learned Additional Government Pleader appearing on behalf
of the respondents objected the said contentions by stating that Appellate
Authority is empowered to modify the punishment under the Rules in
force. Thus by invoking the said power, the punishment of dismissal from
service was modified as compulsory retirement. That apart, the Appellate
Authority considered the fact that the petitioner had given room for a
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criminal complaint against him, who was in uniformed services and taking
W.P.No.26474 of 2017
note of the said misconduct, the punishment of dismissal from service was
imposed. Thus, there is no infirmity.
9. Considering the arguments as advanced by the learned counsels
appearing on behalf of the parties to the lis on hand. The question arises,
whether in respect of the punishment of dismissal from service imposed
based on the order of conviction, the authority competent modified the
punishment without conducting an independent enquiry by following the
procedures as contemplated under the Discipline and Appeal Rules by
framing specific charges in the present case under Rule 3 (b) of the Tamil
Nadu Police Subordinate Services (Discipline and Appeal) Rules.
10. With reference to the said issue, the learned counsel for the
petitioner relied on the judgment of the Honourable Supreme Court of
India in the case of Nar Singh Pal Vs. Union of India reported in [(2000)
3 SCC 588] and the relevant portion reads as under:
“12. The fact that the appellant was
involved in a criminal case is not disputed by the
appellant. What is contended by him is that he
was ultimately acquitted by the Court of Chief
Judicial Magistrate, Agra and, therefore,
involvement of the appellant in a criminal case
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terminating his services. Since the appellant was
W.P.No.26474 of 2017
acquitted, and it was a clean acquittal, the
stigma attached to him of having been prosecuted
in a criminal case should have been treated to
have disappeared and no argument can be
allowed to be raised for justifying the order of
dismissal on the ground of the appellant's
involvement in a criminal case.”
11. With reference to the punishment of dismissal from service, it is
not in dispute that it was issued under Rule 3(c)(i)(1) of the Discipline and
Appeal Rules based on the order of conviction passed by the Criminal
Court of Law. Further, it is not in dispute that the petitioner was
honourably acquitted in the Criminal Appeal by the Learned Sessions
Court, kanchipuram. Since the petitioner was honourably acquitted in the
criminal case, the authorities, if at all found certain other misconducts are
involved with reference to the allegations are bound to conduct an
independent enquiry by following the procedures as contemplated under
rule 3(b) of the Tamil Nadu Police Subordinate Services (Discipline and
Appeal) Rules. Contrarily, the competent authority cannot unilaterally
modify the punishment in an Appeal filed by the petitioner to set aside the
punishment of dismissal from service based on the honourable acquittal.
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W.P.No.26474 of 2017
12. For modification of punishment of dismissal from service to that
of compulsory retirement is that the petitioner ought not to have given
room for any such registration of criminal case against him. Such reasons
stated is untenable, in view of the fact that the criminal case ended with an
order of honourable acquittal and therefore, such a stigma cannot be
attached on the writ petitioner, since he was acquitted honourably. When
an accused was acquitted honourably by the Criminal Court of Law, no
stigma can be attached. In the present case, the room for giving criminal
complaint and the said reason relied on would not arise in view of the
judgment rendered in a Criminal Appeal by the Competent Appellate
Court. Thus, the very reason relied on by the competent authority for
modification of punishment is untenable and thus, the petitioner is entitled
for the relief.
13. Accordingly, the orders impugned passed by the 1st respondent
in his proceedings in Rc.No.108753/AP.I(2)/2014 dated 05.01.2017 and
3rd respondent in his proceedings in C.No.J1/PR.10/2011, D.O.
No.49/2017 dated 01.02.2017 and 2nd respondent in his proceedings in
C.No.B2/8475/2012, R.O.No.63/2017 dated 22.05.2017 and the 3rd
respondent in his proceedings in C.No.J1/P.R.10/2012, D.O.372/2017
dated 01.06.2017 are quashed.
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W.P.No.26474 of 2017
14. The respondents are directed to allow the writ petitioner to retire
from service from the date of his actual superannuation on 30.06.2014 and
settle all the terminal and retirement benefits and the consequential
benefits within a period of four (4) months from the date of receipt of a
copy of this order.
15. With these directions, the Writ Petition stands allowed. No
costs.
13.09.2022
Jeni
Index : Yes / No
Speaking order : Yes / No
To
1.The Director General of Police,
Tamil Nadu, Chennai 600 004.
2.The Deputy Inspector General of Police,
Kancheepuram Range, Kancheepuram.
3.The Superintendent of Police,
District Police Officer,
Kanchipuram District,
Kanchipuram.
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W.P.No.26474 of 2017
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.26474 of 2017
13.09.2022
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