Madras High Court
A.Kanagadasan vs The Director General Of Police on 22 September, 2022
W.P.No.30962 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P.No.30962 of 2019
A.Kanagadasan ... Petitioner
Versus
1. The Director General of Police,
Tamil Nadu,
No.1, Dr.Radhakrishnan Salai,
Mylapore,
Chennai-600 004.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur-613 001.
3. The Deputy Superintendent of Police,
Thiruvaur ... Respondents
Petition filed under Article 226 of the Constitution of India praying to
issue Writ of Certiorarified Mandamus to call for the records pertaining to the
order of the first respondent bearing R.C.No.Con.II(1)/133675/2007 dated
11.05.2019 confirming the order of the second respondent bearing PR
C3/PR.25/04 dated 31.07.2018 and quash the same and consequently direct the
first respondent to consider the name of the petitioner for next promotion with
retrospective effect from the date on which his immediate junior was promoted
as the Inspector of Police in 2007.
1/13
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W.P.No.30962 of 2019
For Petitioner : Mr.S.Mohan
For Respondents : Mr.L.S.M.Hasan Fizal
AGP
ORDER
This writ petition has been filed challenging the order dated
11.05.2019 passed by the first respondent, confirming the order of the second
respondent dated 31.07.2018.
2. While working as Sub Inspector of Police at Eravancheri Police
Station in Tiruvarur District, a case was registered against the petitioner in
Cr.No.15/05 for the offence punishable under Sections 13(1)(d) r/w Sec.13(2)
of the Prevention of Corruption Act, 1988 on the file of the Vigilance & Anti
Corruption Police, Nagapattinam based on the complaint given by one
A.Sundaramurthi dated 18.07.2005 alleging that the petitioner had demanded
Rs.2,000/- as bribe for not filing a case against him on the complaint given by
one Marimuthu. The petitioner was arrested in the said case on 18.07.2005 on
an alleged trap made by the Inspector of Police, Vigilance and Anti-Corruption
Police, Nagapattinam. One Raghavan, Head Constable, attached to the
Eravancheri Police Station and was also arrested in the same case on the charge
that he had accepted a bribe of Rs.200/-.
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W.P.No.30962 of 2019
3. The petitioner was placed under suspension on 21.07.2005 and
was reinstated into service on 22.03.2008. Charge sheet was filed in
Spl.C.C.No.4 of 2008 on the file of Chief Judicial Magistrate, Tiruvarur. Out of
19 witnesses examined on the side of the prosecution, 5 witnesses, including
the de-facto complainant A.Sundaramurthi, turned hostile. The official
witnesses alone deposed in support of the prosecution case. Ultimately, the
petitioner was acquitted from all the charges by judgment dated 24.11.2016
passed by the learned Chief Judicial, Magistrate, Tiruvaur, holding that the
prosecution failed to prove the case.
4. During the pendency of the criminal case, the second respondent
issued a charge memo dated 30.06.2008 to the petitioner in P.R.No.40 of 2008.
The charge reads as follows:
“ Highly reprehensible conduct in having demanded
Rs.5000/-as bribe from Tr.A.Sundaramoorthy, S/o
Annasamy, Puthupagasalai Village on 14.07.2005 at
Eravanchery Police Station and later reduced the amount
and agreed to receive Rs.2000/- as bribe for not taking
action against him and 3 of his relatives on the oral
complaint given by one Tr.Marimuthu and his son
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W.P.No.30962 of 2019
Tr.Kalyanasundaram of Puthui Pagasalai in connection
with an affray ensured between them on 12.07.2005 at
Puthu Pagasalai and in pursuance of said demand, on
18.07.2005 accepted Rs.1,800/- at his residence and
directed to pay Rs.200/- to Tr.K.Raghavan, Head Constable
495, who accepted the same at the police station from the
complainant and thereby committed an offence punishable
U/S 7, 13(1)() r/w 13(2) of P.C.Act.”
5. The third respondent was appointed as an Enquiry Officer in the
disciplinary proceedings. In the Enquiry, all the witnesses excepting the official
departmental witnesses turned hostile. The Enquiry Officer/third respondent
submitted his Report dated 14.05.2017. The Report was sent by the
Superintendent of Police, Tiruvaur by letter dated 05.12.2017. The second
respondent, in turn, caused a notice dated 19.12.2017 enclosing the enquiry
report and directed the petitioner to submit his explanation on the findings of
the Enquiry Officer. The petitioner submitted his explanation dated 02.02.2018
to the second respondent. The second respondent passed an order dated
31.07.2018 accepting the report of the Enquiry Officer/third respondent and
holding the petitioner guilty of the charge. A punishment of postponement of
increment for a period of one year with cumulative effect was imposed upon the
petitioner.
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W.P.No.30962 of 2019
6. The petitioner thereafter preferred an appeal on 12.11.2018 before
the first respondent. The first respondent by his order dated 11.05.2019
confirmed the punishment imposed by the second respondent. Aggrieved by the
same, the petitioner has filed this writ petition.
7. As seen from the enquiry report submitted by the third respondent,
the basis for giving a finding that the charge against the petitioner has been
proved is that the Forensic Science Laboratory's Report, after conducting the
phenolphthalein test and Sodium Carbonate test, it is established that the seized
currency notes were received by the petitioner and on preponderance of
probability it can be concluded that the petitioner had received bribe. However,
the Mahazar Report dated 18.07.2005 submitted by the Inspector of Police,
Vigilance and Anti-Corruption which is filed as a document along with this writ
petition, would show that the colour did not change in the phenolphthalein test,
which is contradictory to the findings of the Forensic Laboratory's report, which
discloses that there was colour change.
8. The criminal court in its judgment in Spl.C.C.No.4 of 2008 dated
24.11.2016 passed by the Chief Judicial Magistrate, Tiruvarur, has also
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W.P.No.30962 of 2019
acquitted the petitioner as the prosecution has failed to establish that the
petitioner had received bribe. The same set of witnesses who were examined in
the disciplinary proceedings were also examined as witnesses on the side of the
prosecution in the criminal case. The basis of criminal prosecution is also the
same as that of the charge memo, which was issued in the disciplinary
proceedings against the petitioner. All the independent witnesses in both the
criminal prosecution and in the disciplinary proceedings have turned hostile and
have supported the case of the petitioner rather than supporting the case of the
prosecution. The only basis for imposing punishment in the disciplinary
proceedings against the petitioner is the Forensic Science Laboratory's Report.
As observed earlier, the said report is contradictory to the findings of the
Mahazar Report submitted by the Inspector of Police, which was submitted
immediately on the seizure of the currency notes from the petitioner.
9. The alleged incident is said to have taken place on 18.07.2005 and
the charge memo was issued against the petitioner in the disciplinary
proceedings on 30.06.2008, i.e., after a period of more than three years from the
date of incident. Admittedly, enquiry in the disciplinary proceeding commenced
only in the year 2015 though an explanation to the charge memo was given by
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W.P.No.30962 of 2019
the petitioner immediately on receipt of the said charge memo. The enquiry
report along with the minutes of the third respondent was also submitted to the
second respondent only in the year 2017 and the punishment was imposed on
the petitioner in the year 2018.
10. No additional evidence or factual information other than those
pleaded in the criminal case were available for the respondents to initiate
disciplinary proceedings against the petitioner. As seen from Tamil Nadu Police
Standing Orders 67 (3) in departmental enquiries, under normal circumstances,
the departmental authorities should not dissent from the conclusions arrived at
by the Court of Law, unless fresh circumstances have brought to light that there
was lacunae or defects in the evidence before, or in the procedure of such court.
11. In the case on hand, on similar set of facts and evidence, the
criminal court has acquitted the petitioner, whereas, the disciplinary authority
has punished the petitioner on preponderance of probability. Even for existence
of preponderance of probability, there must be some evidence, which lead to the
conclusion that the department has proved the guilt of the delinquent. However,
in the instant case, when the mahazar report at the time of seizure of currency
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W.P.No.30962 of 2019
notes, clearly indicates that there was no change of colour in the
phenolphthalein test, the question of accepting the Forensic Science Laboratory's
test which was taken later and that too in the absence of the petitioner is not an
acceptable piece of evidence and cannot be taken into consideration for the
purpose of punishing the petitioner that too, when it is contrary to the findings
of the mahazar report submitted by the Inspector of Police . Police Standing
Order (PSO) 67 reads as follows:
“ PSO 67. Procedure after acquittal:-
(1)....
(2)....
(3) The Government do not wish it to be
understood that the departmental authorities are
not entitled, on grounds of legitimate suspicion,
to order a departmental enquiry in all such cases.
They do, however, wish to emphasize that in
enquiries of this kind, the departmental
authorities should not dissent from the
conclusions arrived at by the Court of law, unless
fresh circumstances have brought to light lacunae
or defects in the evidence before, on in the
procedure of such court.”
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W.P.No.30962 of 2019
12. The enquiry report was submitted on 14.05.2017, whereas, the
second respondent accepted the report of the Enquiry Officer holding the
petitioner guilty of the charge and has imposed punishment of postponement of
increment for one year with cumulative effect only on 31.07.2018 i..e, after the
lapse of more than 14 months from the date of submission of the enquiry report
by the third respondent. The Vigilance and Anti-Corruption Department has
also not filed any appeal as against the acquittal of the petitioner in the criminal
proceedings.
13. A.Sundaramurthi, the complainant who has deposed as witness
No.1 before the criminal court and the Investigating Officer/third respondent
has categorically stated that in a tussle between him and one Marimuthu on
12.07.2005, the latter sustained some injuries and for the said injuries, during
the enquiry in Eravanchery Police Station on 14.07.2005, he agreed to pay
Rs.2,000/- towards the medical expenses of the injured Marimuthu and the said
amount was used as trap money in the instant case. He would categorically
contend that no bribe was paid to the petitioner. He has also deposed that the
petitioner did not make any demand of Rs.5,000/- or Rs.2,000/-
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W.P.No.30962 of 2019
and that he never paid any money to the petitioner. Mr.T.Govindaraj / Witness
No.2, Mr.T.Rajendran/WitnessNo.4, Mr.V.Gopi/ WitnessNo.5, Mr.M.Kumar/
Witness No.6, Mr.M.Kalyanasundaram/Witness No.7, Mr.Mathivanam/Witness
No.8, Mr.Ayyappan/Witness No.9, Mr.Vaithiyalingam/Witness No.10 who were
also examined in the departmental enquiry to corroborate the bribe charge, have
all pleaded ignorance about the allegations against the petitioner. The petitioner
at the time of filing of this writ petition was left with two years and 9 months of
service only. As seen from the affidavit filed in support of the writ petition,
excepting for the present case, no disciplinary proceeding is pending against the
petitioner.
14. For the foregoing reasons, this Court is of the considered view
that the impugned orders have been passed without there being any evidence
against the petitioner for having received bribe and therefore, the impugned
orders have to be necessarily quashed and the writ petition will have to be
allowed.
15. Accordingly, the impugned orders of the first respondent dated
11.05.2019 and the second respondent dated 31.07.2018 imposing a
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W.P.No.30962 of 2019
punishment of postponement of increment for one year with cumulative effect
against the petitioner is hereby quashed and the writ petition is allowed. No
costs. The respondents are directed to regularise the period of suspension in
accordance with Rules and grant the petitioner the consequential service and
monetary benefits as if he was not awarded with punishment in the
departmental proceedings, within a period of three months from the date of
receipt of a copy of this order. No costs.
22.09.20
sr
Index: Yes/No
Speaking Order/Non-Speaking Order
To
1. The Director General of Police,
Tamil Nadu,
No.1, Dr.Radhakrishnan Salai,
Mylapore,
Chennai-600 004.
2. The Deputy Inspector General of Police,
Thanjavur Range, Thanjavur-613 001.
3. The Deputy Superintendent of Police,
Thiruvaur
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W.P.No.30962 of 2019
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W.P.No.30962 of 2019
ABDUL QUDDHOSE, J
sr
W.P.No.30962 of 2019
22.09.2022
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