M.Raghunathan vs The Superintendent Of Police
2022 Latest Caselaw 15550 Mad

                                                                                        W.P.No.14575 of 2018

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                      DATED: 20.09.2022

                                                             CORAM:

                                   THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE

                                                     W.P.No.14575 of 2018
                M.Raghunathan                                                           ... Petitioner

                                                                Versus

                1. The Superintendent of Police,
                   Tiruppur District.

                2. The Deputy Inspector General of Police,
                   Coimbatore Range, Coimbatore.

                3. The Inspector General of Police,
                   West Zone, In-charge DIG of Police,
                   Coimbatore Range, Coimbatore                                         ... Respondents

                                  Petition filed under Article 226 of the Constitution of India praying to
                issue Writ of Certiorari to call for the records of the first respondent in
                connection with the impugned order passed by him in C No.F1/PR/01/2016
                dated 21.04.2016 and confirmed by the 2nd and 3rd respondents in
                Na.Ka.No.T2/4080/2016 dated 23.06.2016 and quash the same.


                                            For Petitioner      : Mr.K.Venkataramani
                                                                  Senior Counsel for
                                                                  Mr.M.Muthappan

                                            For Respondents     : Mr.L.S.M.Hasan Fizal
                                                                  AGP

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                                                                                         W.P.No.14575 of 2018

                                                             ORDER

In this writ petition, the petitioner has challenged his dismissal from

service as a Police Constable under the impugned orders dated 21.04.2016 and

23.06.2016.

2. The original authority is the first respondent which had initially

passed the dismissal order on 21.04.2016. The appellate authority/second

respondent has confirmed the dismissal order on 23.06.2016.

3. The petitioner was serving as a Police Constable and he was

charged by the respondents on the ground that he had committed theft of a car,

which was lying in a work shop. The Enquiry Officer held enquiry and after

hearing the petitioner, submitted an enquiry report holding that the charges

framed against the petitioner were proved. Based on the said enquiry report,

after receiving an explanation from the petitioner, the first respondent passed

an order dated 21.04.2016 dismissing the petitioner from service. Aggrieved by

the same, the petitioner preferred an appeal before the second respondent and

the second respondent confirmed the findings of the first respondent by

dismissing the appeal on 23.06.2016. Aggrieved by the same, this writ petition

has been filed.

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W.P.No.14575 of 2018

4. The petitioner has challenged the impugned orders on the

following grounds:-

a) The impugned orders have been passed in violation of the principles of natural justice;

b) On the same set of facts and on the examination of same witnesses, the criminal court has acquitted the petitioner. However, arbitrarily and illegally, the disciplinary authority as well as the appellate authority have ignored the findings of the criminal court and held that the charges framed against the petitioner have been proved and erroneously passed the dismissal order against the petitioner;

c) None of the grounds raised by the petitioner in his explanation to the enquiry report were considered by the respondents 1 and 2 in their respective impugned orders;

d) The chief examination of the respective witnesses of the respondents was conducted in the absence of the petitioner though he was permitted to cross examine them. Excepting for one witness viz., M.Sundarapandian, (P.W.3) none of the other witnesses corroborated Mr.Sundarapandian's evidence that the petitioner had in

https://www.mhc.tn.gov.in/judis fact committed the offence of theft of car.

W.P.No.14575 of 2018

e) The CCTV footage which is the basis of fixing the petitioner as an accused was also not marked as an exhibit before the departmental enquiry. Without any evidence against the petitioner, the impugned dismissal order has been passed against him dismissing him from service.

5. A counter affidavit has been filed by the first respondent denying

the contentions of the petitioner. According to the respondents, a fair and

proper enquiry was held and only thereafter, the charges framed against the

petitioner was declared to be proved. The explanation submitted by the

petitioner to the enquiry report was also not satisfactory and only thereafter, the

impugned dismissal order was passed against the petitioner dismissing him

from service. The Enquiry Officer had examined eight witnesses as prosecution

witness and 16 documents as prosecution exhibits and only thereafter, based on

preponderance of probability, has held that the charges framed against the

petitioner are proved. The judgment in the criminal court does not have any

bearing in a departmental proceedings and therefore, the petitioner cannot rely

upon the same for the purpose of setting aside the dismissal order passed

against him pursuant to a departmental enquiry.

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W.P.No.14575 of 2018

6. Though the statement of witnesses were recorded in the absence of

the petitioner during the preliminary enquiry, all the witnesses were present

during the oral enquiry and the petitioner has also cross examined them at

length. The petitioner has also not raised any objection in this regard during

oral enquiry and therefore, he cannot now contend that the chief examination of

the witnesses were recorded by the enquiry officer in his absence in this writ

petition. The grounds raised in this writ petition were never raised before the

Enquiry Officer and therefore, it is unsustainable.

7. The commission of theft by the petitioner has been proved through

his confession statement and seizure of the vehicle from his custody. Being a

member of the disciplined force, the petitioner has violated the principles of

police conduct laid down in PSO 110 and tarnished the image of the

Department. The High Court under Article 226 of the Constitution of India

cannot make a roving enquiry and interfere with the findings of the Enquiry

Officer that too when an enquiry has been conducted in a fair and proper

manner after affording sufficient opportunity to the petitioner to raise all

contentions available to him under law.

8. Heard Mr.K.Venkatramani, learned Senior Counsel appearing for https://www.mhc.tn.gov.in/judis

W.P.No.14575 of 2018

the petitioner and Mr.L.S.M.Hasan Fizal, learned Additional Government

Pleader for the respondents.

9. The learned Senior Counsel appearing for the petitioner relies on

the following authorities in support of his contentions:-

a) Roop Singh Negi vs Punjab National Bank and Others reported in (2009) 2 SCC 570

B) Unreported judgment of the learned Single Judge of this Court in WP No.7470 of 2007 dated 29.09.2009 (C.

Francis vs The Commandant, T.N.Special Police V Battalion, Avadi, Chennai-109)

c) Unreported judgment of the learned Single judge of this Court in WP No.24113 of 2006 dated 04.04.2013 (D.Dhinakaran vs The Superintendent of Police, Coimabtore Rural District, Coimbatore and another)

10. After relying upon the aforesaid decisions, learned Senior

Counsel for the petitioner would submit that the management witnesses merely

tendered the documents and did not prove the contents thereof. The purported

evidence collected during investigation by the investigation officer against all

the accused by itself could not be treated to be evidence in the disciplinary

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W.P.No.14575 of 2018

proceeding. Learned Senior Counsel relied upon the decision rendered by a

learned Single Judge of this Court referred to supra and would submit that the

petitioner cannot be punished and dismissed from service since on the same set

of facts and on examination of the very same witnesses, the criminal court has

acquitted the petitioner. He would submit that preponderance of probability is

that the petitioner cannot be found guilty as there is no evidence against the

petitioner to prove that he was involved in the theft of a car.

11. Learned Additional Government Pleader appearing for the

respondents would reiterate the contents of the counter affidavit filed by the

respondents before this Court. He would submit that only based on evidence

available on record before the Enquiry Officer, the charges framed against the

petitioner was found to be proved. He would also submit that the grounds

raised by the petitioner in this writ petition were never raised before the

Enquiry Officer and therefore, this Court will have to reject the same. He

further submits that this Court cannot make a roving enquiry in a petition filed

under Article 226 of the Constitution of India.

Discussion:-

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W.P.No.14575 of 2018

12. Admittedly, the petitioner has been acquitted by a criminal court

with regard to the same charges that were levelled against him in the

departmental proceedings. The same witnesses who were examined in the

departmental proceedings by the Management, were also examined before the

Criminal court. The learned Judicial Magistrate No.II, Tiruppur by judgment

dated 11.03.2016 in CC No.818 of 2015 has rendered the following findings:-

“ nkw;goahhpd; rhl;rpaj;ij ghprPypj;jjpy; ,e;jpa rhl;rpa rl;lj;jpy; Fwpg;gplg;gl;Ls;sthW vjphp jhkhf Kd; te;J xU xg;g[jy; thf;FK:yk; bfhLj;jjhfnth me;j xg;g[jy; thf;FK:yj;jpy; jpUoa fhiu mtUf;F kl;Lnk bjhpe;j tifapy; kiwj;J itj;jpUg;gjhfnth jd;id miHj;J brd;why; jhd; mt;thW jpUo kiwj;J itj;jpUf;Fk; fhiu vLj;J M$h; bra;tjhf Twpajhfnth me;j xg;g[jy; thf;FK:yj;jpd; mog;gilapy; vjphp miHj;Jr; brd;W me;j fhiu vLj;J M$h; bra;jhh; vd;nwh/ Fwpg;gpl;L rhl;rpak; mspf;ftpy;iy. nkYk; m.rh.6 unk&; vjphpia gpoj;Jf; bfhz;L jpUr;br';nfhL brd;wjhft[k; vjphp m';fpUe;j fhiua[k; igf;ifa[k; fhl;oajhft[k;/ gpd;g[ krfhpy; ifg;gw;wpajhft[k; Twpa[s;shh;. nkw;go fhuhdJ Fwpg;gpl;l ve;j ,lj;jpy; kiwj;J itj;jpUe;J vLj;J M$h;gLj;jg;gl;lJ vd;gJ Fwpj;J rhl;rpak;

mspf;ftpy;iy. ,e;epiyapy; xg;g[jy; thf;FK:yj;jpd;nghJ cldpUe;jjhf tprhhpf;fg;gl;Ls;s kw;bwhU rhl;rpahd m.rh.7 Rnuc#;Fkhh; jd; rhl;rpajjpy vjphp jhdhf Kd; te;J xU xg;g[jy; thf;fK:yk; bfhLj;jjhfnth https://www.mhc.tn.gov.in/judis mjd;go vjphpia miHj;Jr; brd;why; fhiu vLj;J

W.P.No.14575 of 2018

bfhLg;gjhf vjphp xg;g[f;bfhz;ljhfnth Fwpg;gpl;L rhl;rpak; mspf;ftpy;iy/ nkYk; rc&;o fhh;!pypUe;J vLj;j !;tpg;l; oirah; fhiu ehkf;fy;ypy; vjphpapd;

                                  tPl;oypUe;J       vLj;J       bfhLj;jjhf      rhl;rpak;
                                  mspj;Js;shh;.      nkw;go     m.rh.6   kw;Wk;    m.rh.7

Mfpnahh;fspd; rhl;rpa';fis ghprPypj;jjpy; m.rh.6 unkc&; vjphp jpUr;br';nfhl;oy; jd; tPl;oypUe;J fhiu vLj;J bfhLj;jjhft[k; m.rh.7 Rnu&;Fkhh; ehkf;fy;ypy; vjphpapd; tPl;oypUe;J fhiu vLj;J bfhLj;jjhf rhl;rpak; mspj;Js;shh;. nkw;goahh;fspd; rhl;rpaj;jpypUe;J vjphpapd; tPL jpUr;br';nfhl;oy;

                                  cs;sjh my;yJ ehkf;fy;ypy; cs;sjh vd;W mwpa
                                  ,aytp;y;iy.         nkYk;        nkw;go       fhuhdJ
                                  jpUr;br';nfhl;oypUe;J      ifg;gw;wg;gl;ljh     my;yJ

ehkf;fy;ypypUe;J ifg;gw;wg;gl;ljh vd;gija[k; mwpa ,aytpy;iy. nkw;go m.rh.6 kw;Wk; m.rh.7 Mfpnahh;fspd; rhl;rpa';fis ghprPypj;jjpy; vjphp jhkhf Kd; te;J xg;g[jy; thf;FKyk; bfhLj;jjhfnth mjd;

                                  mog;gilapy;       jpUoajhf      brhy;yg;glLk;    fhiu
                                  ifg;gw;wajhfnth        rl;ltpjpfSf;Fl;gl;L    rhl;rpak;

mspf;fhjjhy; nkw;goahh;fspd; rhl;rpak; Vw;g[ilajhf njhd;wtpy;iy vd;nw ,e;ePjpkd;wk; Kot[ bra;fpwJ.

18.,t;tHf;fpy; m.rh.8 fhty; Ma;thsh; Re;jughz;oad; ,t;tHf;if gjpt[ bra;J g[yd; tprhuiz nkw;bfhz;L rhl;rpfis tprhhpj;J thf;FK:y';fs; gjpt[ bra;jjhft[k; gpd;dpl;L vjphp kPJ Fw;wg;gj;jphpf;if jhf;fy; bra;jjhft[k;/ gpd;g[ vjphpia ifJ bra;J brhj;ijf; ifg;gw;wp rhl;rpfis tprhhpj;J thf;FK:y';fs; gjpt[ bra;jjhf Fwpg;gpl;L rhl;rpak; mspj;Js;shh;/ Mdhy; m.rh.1 jd; rhl;rpaj;jpy; rprpo nfkuh gjpt[fis https://www.mhc.tn.gov.in/judis ghh;j;jnghJ bcwy;bkl; mzpe;j egh; fhiu vLj;J

W.P.No.14575 of 2018

brd;wJ gjpthfpapUg;gjhf Twg;gLk; epyiyapy;

cz;ikapy; me;j fhuhdJ | r#;o fhh;

n#hkpypUe;J vt;thW jpUor; bry;yg;gl;lJ vd;gij mwpe;J bfhs;tjw;F me;j rprpo nfkuh gjpt[fis bgw;W Vd; ,t;tHf;fpy; jhf;fy; bra;atpy;iy vd;gjw;F Vw;g[ilaj fhuzk; vija[k; Twtpy;iy/ ,e;epiyapy; ,t;thwhf nkny fz;l muR jug;g[ rhl;rpfspd;

rhl;rpa';fis ghprPypj;jjpy; muR jug;gpy; vjphpapd; kPJ Rkj;jg;gl;Ls;s Fw;wr;rhl;lhdJ vt;tpj Iag;ghLfSf;Fk; mg;ghw;gl;L epU:gpf;fg;gltpy;iy

vd;nw ,t;thwhf ,g;gpur;ridf;F jPh;t[ fhzg;gLfpwJ."

13. As seen from the aforesaid findings of the Criminal court, it is

clear that the petitioner has been acquitted as the prosecution has failed to

establish the charges through proper evidence. The same witnesses who have

been examined before the criminal court on behalf of the respondents were also

examined in the departmental proceedings. The decisions relied on by the

learned Senior Counsel for the petitioner in the case of C. Francis vs The

Commandant, T.N.Special Police V Battalion, Avadi, Chennai-109 (WP

No.7470 of 2007 dated 29.09.2009) and D.Dhinakaran vs The

Superintendent of Police, Coimabtore Rural District, Coimbatore and

another( WP No.24113 of 2006 dated 04.04.2013), referred to supra, supports

the case of the petitioner.

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W.P.No.14575 of 2018

14. The Hon'ble Supreme Court in the case of Roop Singh Negi vs

Punjab National Bank and Others reported in (2009) 2 SCC 570, referred to

supra, relied on by the learned Senior Counsel for the petitioner, has observed

as follows:-

"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence."

15. In the case on hand also, excepting for one witness who was the

investigating officer (PW3) M.Sundara Pandian, the other witnesses examined

by the respondents during the enquiry proceedings did not pinpoint that the

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W.P.No.14575 of 2018

petitioner was the person who had committed the theft of the car. The evidence

of M.Sundara Pandian was already rejected by the criminal court and the

petitioner has already been acquitted in the criminal case. The same evidence of

M.Sundara Pandian cannot be used in the departmental proceedings as the same

was already rejected by the criminal court. Only based on his evidence, the

petitioner has been dismissed from service under the impugned orders. There is

also no supporting material apart from M.Sundara Pandian's evidence that the

petitioner is the person who has committed the theft. While that be so, the

respondents, under the impugned orders, ought not to have held the petitioner

guilty and imposed the punishment of dismissal from service upon him.

16. Learned Senior Counsel appearing for the petitioner would now

submit, on instructions, that the petitioner is satisfied if he is reinstated into

respondents service and the petitioner will not be claiming back wages. The

said undertaking given by the petitioner through the learned Senior Counsel for

the petitioner is recorded by this Court.

17. For the foregoing reasons, the impugned orders passed by the

respective respondents have to be necessarily quashed and the writ petition will

have to be allowed.

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W.P.No.14575 of 2018

18. In the result, the impugned orders dated 21.04.2016 and

23.06.2016 passed by the respective respondents are quashed and the writ

petition is allowed and the respondents are directed to reinstate the petitioner

into service as a Constable within three months from the date of receipt of a

copy of this order. However, it is made clear that the petitioner is not entitled

for any back wages, but, he is entitled for continuity of service for getting all

service benefits.

20.09.2022

sr Index: Yes/No Speaking Order/Non-Speaking Order

To

1. The Superintendent of Police, Tiruppur District.

2. The Deputy Inspector General of Police, Coimbatore Range, Coimbatore.

3. The Inspector General of Police, West Zone, In-charge DIG of Police, Coimbatore Range, Coimbatore

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W.P.No.14575 of 2018

ABDUL QUDDHOSE, J

sr

W.P.No.14575 of 2018

20.09.2022

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