Madras High Court
The Director General Of Police vs M.Arul on 3 January, 2023
W.A.No.1180 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM :
THE HONOURABLE MR. JUSTICE R. MAHADEVAN
and
THE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
Writ Appeal No.1180 of 2022
and
CMP.No.7448 of 2022
1. The Director General of Police,
Mylapore, Chennai - 600 004.
2. The Commissioner of Police,
Vepery, Chennai - 600 007.
3. The Additional Commissioner of Police (Traffic)
Kilpauk, Chennai - 600 010.
Now at Office of the Commissioner of Police,
Vepery, Chennai - 600 007.
4. The Superintendent of Police,
Tamil Nadu Commando Force,
Chennai 600 028. .. Appellants
Versus
M.Arul, Gr.I PC 15082,
C2, Elephant Gate (Traffic),
Waltax Road, Chennai 600 079.
Now at
R.4, Pondy Bazaar Traffic Investigation,
Chennai - 600 017. .. Respondent
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W.A.No.1180 of 2022
Writ Appeal filed under Clause 15 of Letters Patent praying to set aside
the order dated 12.07.2021 made in WP.No.43946 of 2016.
For Appellants : Mr.P.Kumaresan,
Additional Advocate General
assisted by Mr.Selvendran,
Special Government Pleader
For Respondent : Mr. Venkataramani, Senior Counsel
for Mr.M.Muthappan
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
The appellants / State are aggrieved by the order dated 12.07.2021
passed by the learned Judge in WP No. 43946 of 2016.
2. The necessary facts leading to the filing of this writ appeal are as
follows:
2.1. The respondent herein was initially appointed as Grade-II Police
Constable in the Police Department on 25.10.1993. While he was working as
Police Constable, Tamil Nadu Commando Force, Chennai, he was issued with
a charge memorandum dated 22.08.2015 containing four charges and was
placed under suspension on 11.09.2015 alleging that he along with his
colleagues indulged in leaking the General Knowledge and Psychology
Question Papers with answers pertaining to the Written Examination for the
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W.A.No.1180 of 2022
selection of Grade II Police Constables (Men and Women) for the year 2003-
2004 conducted by the Tamil Nadu Uniformed Services Recruitment Board,
Chennai on 27.03.2005.
2.2. The respondent, on receipt of the charge memo, submitted his
explanation denying the charges. Being dissatisfied with the explanation
offered by the respondent, enquiry was conducted from 30.11.2005 to
07.02.2006 in which 12 out of the 8 prosecution witnesses were examined. At
this stage, the respondent filed WP No.8917 of 2007 stating that during the
pendency of the departmental enquiry, the Central Bureau of Investigation
(CBI), with whom the investigation was entrusted, has submitted a report, in
which, his name was not included. On the basis of the report of the CBI relied
upon by the respondent, the learned Judge granted an order of interim stay.
2.3. By virtue of the interim stay granted by this Court, the order of
suspension passed against the respondent was revoked by an order dated
07.10.2009 of the Inspector General of Police, Operations, Chennai - 600 028
and the respondent rejoined duty on 09.10.2009. In view of the revocation of
the order of suspension, the respondent withdrew the said writ petition on
23.04.2010 and the enquiry against the respondent continued, in which the
remaining 4 witnesses were examined. Ultimately, the Enquiry Officer viz.,
Commissioner of Police, Tirunelveli submitted an enquiry report holding that
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W.A.No.1180 of 2022
all the charges levelled against the respondent are proved. On receipt of the
report of the enquiry officer, the Disciplinary Authority viz., Commissioner of
Police, Chennai, after complying with all the formalities, passed an order dated
21.09.2011 imposing the punishment of postponement of increment for two
years without cumulative effect.
2.4. The respondent did not prefer any appeal against the order of the
disciplinary authority, however, he filed a Mercy Petition to the Director
General of Police, Chennai on 27.12.2012. The Mercy Petition was rejected
on 22.10.2016 as devoid of merits. Aggrieved by the same, the respondent has
filed WP No. 43949 of 2016 praying to quash the Charge memo dated
22.08.2005 and the Order of punishment dated 21.09.2011 of the Disciplinary
authority as well as the order of rejection of mercy petition dated 22.10.2016
of the Director General of Police and to direct the appellants to extend all the
service benefits including promotion, regularisation of suspension period.
2.5. The learned Judge, by the order dated 12.07.2021, allowed the
aforesaid writ petition mainly on the ground that enquiry was conducted
against the respondent and others. One of the co-delinquents Maruthupandi,
against whom similar charges were levelled, but whose name was not included
in the charge sheet filed by the investigation agency, has approached this
Court by filing WP (MD) No. 7118 of 2017 stating that different punishment
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W.A.No.1180 of 2022
was imposed on the delinquents against whom common enquiry was
conducted and hence, the same is legally impermissible. The learned Judge,
accepting the said submission of the co-delinquent Maruthupandi, allowed the
writ petition bearing no.7118 of 2017 on 03.12.2019. Following the same, the
learned Judge allowed the writ petition filed by the respondent herein, by the
order impugned herein. Therefore, this appeal by the State.
3. Mr. Kumaresan, learned Additional Advocate General appearing
for the appellants would contend that the respondent was given adequate
opportunity to defend the enquiry proceedings and was permitted to cross-
examine the witnesses examined on the side of the appellants. It is not the case
of the respondent that the enquiry conducted was a farce. In such
circumstances, the learned Judge ought not to have interfered with the order of
punishment imposed by the disciplinary authority. Furthermore, the
respondent did not challenge the order of punishment passed by the
disciplinary authority at the first instance, but he has preferred only a mercy
petition before the Director General of Police to review the same. While so,
the order passed by the learned Judge, in setting aside the orders passed
against the respondent, is perverse and unsustainable in law. The learned
Additional Advocate General further contended that considering the past
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W.A.No.1180 of 2022
service rendered by the respondent, the disciplinary authority, notwithstanding
the gravity of the charges, had taken a very lenient view and imposed a minor
punishment. It is also submitted that the respondent was not a single person
involved in the alleged offences and there had been 41 similar police
personnel and hence, quashing the order of punishment imposed on the
respondent will be a bad precedent and give wrong signal to the act of
disincentive to other police personnel. That part, in matters relating to
departmental proceedings, the judicial review under Article 226 of The
Constitution of India is very limited. Without considering all those aspects in
proper perspective, the learned Judge erred in allowing the writ petition filed
by the respondent, thereby setting aside the orders of disciplinary authority as
well as the appellate authority. Stating so, the learned counsel sought to allow
this appeal by quashing the order impugned herein.
4. Mr. Venkataramani, learned Senior Counsel appearing for the
respondent would submit that after conducting common enquiry, the
disciplinary authority had imposed different punishment on the delinquents,
who were charged with the similar charges. While the respondent was imposed
with the punishment of stoppage of increment for two years, other delinquents
were awarded with the punishment of "Reprimand" or "Censure". Such a
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W.A.No.1180 of 2022
course adopted by the disciplinary authority is legally impermissible.
Therefore, taking note of the fact that the respondent was grossly
discriminated in the matter of imposition of punishment, the learned Judge has
rightly allowed the writ petition filed by the respondent by setting aside the
orders of punishment and rejection of mercy petition by the order impugned
herein, which does not require any interference at the hands of this court.
5. We have heard the learned Additional Advocate General
appearing for the appellants as well as the learned Senior Counsel for the
respondent and also perused the materials placed before us.
6. It is an admitted fact that though the respondent was charge
sheeted by the department, his name was not included in the final report filed
by the CBI. The enquiry conducted by the department against him, ended in
the order of punishment of withholding increment for two years without
cumulative effect. Challenging the order of punishment passed by the
disciplinary authority, he did not file appeal, but he preferred mercy petition
before the appellate authority, who rejected the same. Thereafter, the
respondent filed WP.No.43946 of 2016 to set aside all those orders passed
against him. The learned Judge, following the earlier order dated 03.12.2019
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W.A.No.1180 of 2022
passed in WP(MD)No.7118 of 2017 in respect of the co-delinquent, allowed
the said writ petition, in favour of the respondent herein, by the order
impugned in this writ appeal. For better appreciation, the observation of the
learned Judge is reproduced below:
“7.The petitioner herein is also similarly placed as that of
M.Maruthupandi, wherein his name was initially shown as accused in Crime
No.2600 of 2005 and his name was later dropped at the time of framing of
charges. The action initiated by the respondents in imposing the punishment
of Black Mark for the co-delinquent Dharmaraj and dropping the other co-
delinquent T.Radhakrishnan from the disciplinary action, would amount to
discrimination, insofar as the petitioner herein is concerned. Therefore, the
petitioner herein, who was imposed with a punishment of withholding of
increment for two years without cumulative effect, deserves similar orders as
that of Marudhupandi's case (supra).”
7. Now, the only point requires to be considered by this court in this
writ appeal is, whether the learned Judge is right in allowing the writ petition
by holding that the order of punishment passed by the disciplinary authority
would amount to discrimination, as the respondent was imposed with the
punishment of stoppage of increment for two years without cumulative effect,
whereas his co-delinquents were imposed with the punishment of black mark
and dropping of the disciplinary action.
8. In this context, it is relevant to refer to the following decisions of
the Hon'ble Supreme Court as well as this Court. In M. Raghavelu vs.
Government of A.P. and another [(1997) 10 Supreme Court Cases 779], it
was contended on behalf of the appellant that the persons, who are directly
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W.A.No.1180 of 2022
responsible for the delinquency have been let off, while the appellant, who has
been responsible for the charge indirectly, has been imposed with the
punishment. In Para Nos.4 and 5, the Honourable Supreme Court held thus:
"4. Mr. A.V. Rangam, learned counsel for the appellant,
submits that the appellant was not factually in charge of the building
construction, as admitted by the enquiry officer, and as a matter of fact,
the persons, namely the Deputy Executive Engineer and the Supervisor,
who were directly in charge of the building construction were similarly
charged for identical misconduct and on the same set of evidence, though
in different proceedings, they were exonerated of the charge. The
Government who is the punishing authority, accepting the
recommendation, exonerated them of the charge.
5. The argument of the learned counsel for the appellant is
that if the persons directly in charge of the construction work were found
not guilty of the charge framed, the appellant, who was indirectly in
charge of the work, cannot be punished for similar charge levelled against
him. We find force in the argument of the learned counsel for the appellant
and we do not think that the argument of the learned counsel for the
respondent that the enquiry officer in this particular case has gone into
the merits and has given different finding should be accepted. As pointed
out earlier, on the basis of the same set of evidence the officers who were
directly in charge of the construction work were exonerated of the charge
and we see no reason to pick out the appellant alone for finding him guilty
of the charge."
9. In Director General of Police and others v. G. Dasayan [AIR
1998 Supreme Court 2265], the Hon'ble Supreme Court had an occasion to
consider the question of discrimination, if the disciplinary authority imposes
different punishment to the delinquents in the departmental enquiry. This was
recorded by the Hon'ble Supreme Court in Para Nos. 8 to 10 and they are as
follows:
"8. .............The third ground that the co-delinquents except the
Head Constable were let off though the charges were identical, it is stated
by the learned counsel for the appellants that the Disciplinary Authority
did not agree with the findings of the Enquiry Officer so far as those two
delinquents were concerned. However, the Head Constable, who was also
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W.A.No.1180 of 2022
charged along with the respondent, was compulsorily retired by the
disciplinary authority.
9. Mr. Muralidhar, learned counsel appearing for the
respondent, while agreeing with the contentions of the learned counsel for
the appellants on the first two grounds, submitted that the order of
dismissal at any rate cannot be sustained and if at all an order of
compulsory retirement as was made in the case of Head Constable, who
was tried along with the respondent, has to be imposed.
10. We have perused the order of the Tribunal and the relevant
documents. We find merit in the arguments of the learned counsel for the
appellants. At the same time, we are of the view that as pointed out by the
learned counsel for the respondent that a punishment of compulsory
retirement in the case of the respondent as well would meet the ends of
justice on the facts and circumstances of this case."
10. Further, this Court, in R. Karuppannan v. Tamil Nadu Water
Supply and Drainage Board [1992 MLJ Volume I Page No.303] had dealt
with a similar case. In that case, this Court, by placing reliance on the decision
of the Honourable Supreme Court in E.S. Reddy vs. Chief Secretary,
Government of Andhra Pradesh, AIR 1987 SC 1550, held that when two
persons are responsible, one alone cannot be made a scapegoat. This Court,
after referring to the decision of the Hon'ble Supreme Court, mentioned supra,
has held in para No.10 as follows:
"........From the above observations, it is clear that when two
persons are responsible, one alone cannot be made a scape-goat. In this
case, a reading of the punishing authority clearly shows that the
Superintending Engineer has been let off pitying him, at the same time
inflicting a punishment on the petitioner. In my view, this itself is
sufficient to show that the order passed in this case offends Article 14 of
the Constitution, and has got to be set aside on that ground alone."
11. On going through the aforesaid decisions, it is clear that the
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W.A.No.1180 of 2022
disciplinary authority cannot impose different punishment on the delinquents
for similar charges. This is more so that the evidence relied on by the
disciplinary authority to let off one of the delinquents and to use the same
evidence to inflict punishment on the other delinquent. In the present case,
one of the co-delinquents, against whom similar set of charges were levelled,
was exonerated from the entire departmental proceedings, but the other
co-delinquents, including the respondent herein, were imposed with varied
punishments and hence, the same would certainly amount to discrimination.
Accordingly, the learned Judge has rightly concluded that the punishment
awarded to the respondent herein cannot be sustained. We do not find any
infirmity in such conclusion arrived at by the learned Judge, warranting our
interference.
12. In the result, the writ appeal fails and it is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
[R.M.D., J.] [J.S.N.P., J.]
03.01.2023
Index : Yes / No
Internet : Yes / No
av
https://www.mhc.tn.gov.in/judis
W.A.No.1180 of 2022
R. MAHADEVAN, J.
and
J.SATHYA NARAYANA PRASAD, J.
av
To
1. The Director General of Police,
Mylapore, Chennai - 600 004.
2. The Commissioner of Police,
Vepery, Chennai - 600 007.
3. The Additional Commissioner of Police (Traffic)
Kilpauk, Chennai - 600 010.
Now at Office of the Commissioner of Police,
Vepery, Chennai - 600 007.
4. The Superintendent of Police,
Tamil Nadu Commando Force,
Chennai 600 028.
W.A.No.1180 of 2022
and
CMP.No.7448 of 2022
03.01.2023
https://www.mhc.tn.gov.in/judis
