Madras High Court
K.Madhavan vs The Secretary To Government on 19 September, 2022
W.A.No.2300 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.09.2022
Coram
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice D.BHARATHA CHAKRAVARTHY
W.A.No.2300 of 2021
and C.M.P.No.14613 of 2021
K.Madhavan ..Appellant
Vs
1.The Secretary to Government,
Home Department,
Fort St. George,
Chennai – 09.
2.The Director General of Police,
Mylapore,
Chennai – 04.
3.The Inspector General of Police,
Armed Police,
Kilpauk, Chennai – 10.
4.The Deputy Inspector General of Police,
Armed Police,
Trichy – 12. ..Respondents
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Appeal preferred under Clause XV of Letters Patent against the order
dated 06.11.2020 made in W.P.No.11438 of 2014.
For Appellant .. Mr.M.Ajmal Khan, Senior Counsel
assisted by
Mr.B.Vishnu Chelliya,
M/s.Ajmal Associates
For Respondents .. Mr.T.N.C.Kaushik
Additional Government Pleader
JUDGMENT
(Delivered by D.BHARATHA CHAKRAVARTHY, J.)
The writ appeal is directed against the order of the learned single
Judge dated 06.11.2020 in W.P.No.11438 of 2014 in and by which the
learned single Judge dismissed the writ petition filed by the appellant
challenging the order of punishment as well as the order of the appellate
authority.
2. On 05.07.2005, the appellant was issued with the charge
memorandum containing two charges. It is useful to extract the exact
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charges which read as under.
“Charge No.1: At the Police Quarters,
where Havildar 1075 Thennarasu was residing at
No.A, 4 Police Quarters, at the time when
Havildar 1075 Thennarasu and his wife were not
available, with malicious intention on 26.08.2004
for the whole night, you have stayed is an act
which is a punishable one.
Charge No.2: Within Battalion campus, with
one Muthamilselvi (Woman Naik 1833 TSP 11th
Battalion / Woman Naik 6379 TSP 6th Battalion)
on 28.11.2004 at about 18.50 hours, you have
roamed in an auto and thus you have acted in
bringing defame to the disciplined Police Force,
which act is a misconduct and a punishable one.”
3. The appellant denied the above charges and submitted his
explanation. The explanation submitted by the appellant was not accepted
and an Enquiry Officer was appointed. The Enquiry Officer, after
conducting oral enquiry, submitted his Report dated 18.09.2005 holding
both the charges as proved. Upon issuance of the second show cause notice,
the appellant submitted his further explanation on 26.09.2005. After
considering the said explanation, the order dated 04.01.2006 was passed by
the fourth respondent herein dismissing the appellant from service. The
appellant filed a departmental appeal against the order and by an order dated
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29.03.2006, the third respondent dismissed the appeal. Aggrieved by the
said order, the appellant herein filed W.P.(MD) No.3316 of 2006 before the
Madurai Bench of this Court and by an order dated 19.11.2009, the learned
single Judge held that the order of the Appellant Authority was bereft of
any reasons and therefore, set aside the said order and remanded back the
matter for consideration on merits and for passing reasoned order. By an
order dated 04.02.2010, the third respondent again rejected the appeal filed
by the appellant and confirmed the punishment of dismissal from service.
As against the said order of the third respondent, the appellant preferred a
mercy petition before the second respondent i.e., Director General of Police
and by an order dated 16.07.2010, after considering the nature of charges
and after considering the fact that this was the first delinquency, the
punishment was modified as that of 'compulsory retirement'. As against the
said order, once again the appellant has given a representation to the
Government and the first respondent, by G.O.(2D) No.386 Home (Pol.IX)
Department, dated 01.08.2013, confirmed the said order modifying the
punishment as of 'compulsory retirement'. Aggrieved by the said orders, the
appellant has filed W.P.No.11438 of 2014 before this Court.
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4. The contention of the appellant was that the charges levelled
against the appellant are without any basis and were against the very
preliminary report of the Deputy Commandant, TSP XI Battalion,
Rajapalayam. He further submitted that in any event there was no evidence
to support the charge No.1 leveled against the appellant and therefore the
findings of the Disciplinary Authority and Appellate Authority are perverse.
Charge No.2 , the allegation is that the appellant had taken one
Muthamilselvi in an autorickshaw inside the battallion residential premises.
She was his fiancee and is also working in the same battalion as a constable.
Later, the appellant married the said Muthamilselvi. Thus, the act was not a
misconduct at all. Therefore, on the above said grounds, he challenged the
orders impugned in the writ petition as findings are perverse and prayed that
the punishment imposed on him be set aside.
5. The learned single Judge, by an order dated 06.11.2020, after
extracting the facts of the case, had dealt with the law laid down by the
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Hon'ble Supreme Court of India delineating with the scope of judicial
review under Article 226 of the Constitution of India, to interfere with the
findings of the disciplinary authority and after delineating the law, in
paragraph 15 held that on a perusal of the oral and documentary evidence
let in before the Enquiry Officer and in the absence of any other procedural
violation, this Court could not interfere with the punishment imposed on
him and dismissed the writ petition. Aggrieved by the same, the present
writ appeal is laid before this Court.
6. Heard Mr.M.Ajmal Khan, learned Senior Counsel appearing
for the appellant and Mr.T.N.C.Kaushik, learned Additional Government
Pleader for the respondents.
7. The learned Senior Counsel for the appellant would take this
Court through the Preliminary Enquiry Report and submits that in this case
P.W.1-Thennarasu was the Junior to the appellant in the same cadre. While
the appellant was about to be promoted, on 29.11.2004 a flimsy charge that
the appellant had come to the battalion premises along with his fiancee
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Muthamilselvi, who was a constable under the respondents was sought to be
made. Whileso on the same day, the said Thennarasu made another
allegation as if three months ago, i.e., on 26.08.2004, the appellant
unauthorisedly tried to knock the door and entered the house of P.W.1-
Thennarasu in an intoxicated condition when he and his wife were not in
station and attempted to misbehave with his daughter, who is aged about 11
years.
8. The learned Senior Counsel after taking this Court through
charge memorandum would submit that in any event, the charge was not
that the appellant misbehaved with the daughter of Thennarasu but, the
Charge No.1 is that it was the appellant unauthorizedly stayed in the house
of said Thennarasu through the night of 26.08.2004. The learned Senior
Counsel would submit that there is absolutely no iota of any evidence
pointing out that the appellant stayed in the house of Thennarasu. Even
during the enquiry, when the said Thennarasu was examined, he further
changed his case as if he had requested the appellant to take care of his
children when he and his wife were away. The learned Senior Counsel
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further submitted that in this case the said Thennarasu immediately did not
lodge any complaint against the appellant. Three months thereafter the said
allegation was generated only to scuttle the promotion of the appellant.
Even then the initial allegation was different. The charge was different.
The evidence of the said Thennarasu before the Enquiry Officer was yet
another version. Therefore, he submitted that there is absolutely no basis for
the case of department. As far as charge No.2 is concerned, the learned
Senior Counsel would submit that Muthamilselvi was the Woman Naik
Constable (W.NK.1833), who was working in TSP VI Battalion. Both of
them travelling in an Autorickshaw within the battalion residence would
not amount to misconduct. As a matter of fact, the appellant got married to
her thereafter.
9. The learned Senior Counsel would further submit that the
modification of the punishment imposed on the appellant by the second
respondent viz., the Director General of Police will not in any manner help
the appellant because he had put in only about nine years of service and
therefore, dismissal from service or compulsory retirement did not make any
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difference. The learned Senior Counsel would further submit that when the
second respondent thought it fit that the punishment of dismissal from
service was too harsh and without any application of mind, the second
respondent converted it into a compulsory retirement, which in any event,
did not make any difference in respect of the appellant. Therefore, he would
submit that this is the case where there is absolutely no evidence on record
so as to punish the appellant and there is no application of mind on the part
of the respondents.
10. Per contra, the learned Additional Government Pleader
appearing for the Respondents would submit that in this case charge No.1
is very serious in nature. P.W.1 Thennarasu had deposed about the same.
When the appellant had misbehaved with the 11 year old girl, appropriately
he has been punished. As far as charge No.2 is concerned, the learned
Additional Government Pleader would submit that from the evidence of
P.W.3- Ponnusamy and others, who were examined before the Enquiry
Officer, the said incident is proved. The battalion campus being the place
of residence of Uniformed Personnel, roaming in an Auto cannot be
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tolerated and therefore, considering the seriousness of the charges and after
duly following the rules, the punishment is imposed. He would submit that
the learned senior counsel appearing for the appellant is unable to point out
any infirmity in the procedure followed and therefore, when the
Disciplinary Authority and the Appellate Authority have followed the due
process of law, the scope of interference under Article 226 of the
Constitution of India is very narrow, the learned single Judge has rightly
dismissed the writ petition and prayed for dismissal of the writ appeal.
11. We have considered the rival submissions made on both sides
and perused the material records in this case.
12. At the outset, it is very clear that the Departmental proceedings
are quasi criminal in nature and it is for the respondent department to allege
a specific misconduct and prove the same. This Court will not go into the
adequacy of the evidence or the appraisal of the evidence. But however,
there must be some evidence on record in respect of the charge, which is
alleged to be proved. In this case, as far as charge No.1 is concerned, as
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rightly pointed out by the learned Senior Counsel appearing on behalf of the
appellant, the original allegation made by the said Thennarasu was that the
appellant/delinquent unauthorizedly at about 11 o' Clock on 26.08.2004
knocked the door repeatedly and entered his house in an inebriated
condition and attempted to misbehave with his daughter, who is 11 year old.
It may be seen that immediately after the occurrence and thereafter,
absolutely there is no complaint till 29.11.2004. Be that as it may, the
charge which is extracted supra is not as per the said complaint of the
Thennarasu. The charge is that on 26.08.2004, during the entire night, the
appellant stayed in the house of Thennarasu. There is absolutely no iota of
evidence to prove the said charge. As a matter of fact, in the enquiry, the
said Thennarasu further improved his version and changed his stand that
he requested the appellant to look after his daughter and son when he and
his wife were away from home. Therefore, there is not only material
contradiction in the complaint given on 29.11.2004 but his evidence has no
imputation in respect of the alleged charge viz., staying in the house of
Thennarasu during the night hours of 26.08.2004. Therefore, when
absolutely there is no evidence on record, we hold that the finding of the
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Enquiry Officer as well as the Disciplinary Authority in respect of charge
No.1 as perverse in nature.
13. As far as charge No.2 is concerned, we agree with the learned
Senior Counsel for the appellant that merely because the appellant traveled
within the quarters in an Autorickshaw that too with another lady constable,
whom he married subsequently, will not in any manner amount to
misconduct. The learned Additional Government Pleader for the
respondents is not in a position to point out any specific rule or standing
order which prohibits such conduct. More so, when the said Muthamilselvi
is also a constable working under the respondents. Therefore, we are of the
view that the charge No.2 will not amount to any misconduct at all.
Therefore, we hold that the findings of the disciplinary authority in this
regard also as perverse.
14. The Appellate Authority as well as the Revisional Authority
and also the Government have not considered the said factor at all. As a
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matter of fact, even after the remand order of this Court, the Appellate
Authority has not given any detailed reasoning except to state in one line
that there is evidence on record. Therefore, we find infirmities in the orders
of the Disciplinary / Appellate / Revisional Authorities. Accordingly, we
hold that the appellant is entitled to succeed.
15. We find that the learned single Judge, without considering the
said specific submission of the appellant, had merely after extracting the law
relating to the scope of this Court in interfering with the disciplinary
proceedings, by giving general findings.
16. As stated above, we are of the specific view that absolutely
both the charges leveled as against the appellant are not at all made out and
therefore, we have held that the findings of the Disciplinary Authority are
perverse in nature. It is settled law that when the order of the Disciplinary
Authority or the Appellate Authority is perverse in nature or without any
evidence at all, this Court would have to interfere in exercise of judicial
review under Article 226 of the Constitution of India. Accordingly, the
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order of the learned single Judge in W.P.No.11438 of 2014 dated
06.11.2020 is liable to be set aside.
17. In the result this Writ appeal is allowed on the following terms :
(i) The Order of the Learned Single Judge dated 06/11/2020, in W.P.
No. 11438 of 2014 is set aside;
(ii) W.P.No.11438 of 2014 is allowed as prayed for with all
consequential benefits.
(iii) No costs. Consequently, connected civil miscellaneous petition is
closed.
(P.U.J.,) (D.B.C.J.,)
19.09.2022
Index: Yes
Speaking order
raa/18
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To
1.The Secretary to Government,
Home Department,
Fort St.George, Chennai – 09.
2.The Director General of Police,
Mylapore, Chennai – 04.
3.The Inspector General of Police,
Armed Police, Kilpauk, Chennai – 10.
4.The Deputy Inspector General of Police,
Armed Police,
Trichy – 12.
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W.A.No.2300 of 2021
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
raa
W.A.No.2300 of 2021
19.09.2022
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