Madras High Court
Mr. K.Sasikumar vs The Principal Secretary To ... on 27 July, 2023
WP No.37209 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2023
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
WP No.37209 of 2016
Mr. K.Sasikumar ... Petitioner
-Vs-
1. The Principal Secretary to Government
Home (Police V) Department,
The Secretariat, Chennai - 600 009.
2. The Additional Commissioner of Police
Traffic Vapery, Chennai - 600 007. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus calling for the records and
quashing the proceedings dated 29.06.2016 vide G.O.(2D) No.348 Home
(Police V) Department of the first respondent, which was served on the
petitioner on 21.09.16, rejecting the mercy petition dated 25.07.2011 of the
petitioner by way of confirming 1st respondent's original order dated
07.01.2004 vide G.O.(2D) 11 (Police V) Department imposed on the
petitioner awarding the punishment of stoppage of increment for a period of
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3 years with cumulative effect and consequently direct the first respondent to
grant continuity of service to the petitioner with all attendant benefits within
time frame.
***
For Petitioner : Mr. K.Ravi Anantha Padmanaban
Senior Counsel
For Respondents : Mr. S.Ravi Kumar
Special Government Pleader
ORDER
The Writ Petition has been filed in the nature of Certiorarified
Mandamus seeking records of the proceedings dated 29.06.2016 in
G.O.(2D) No.348 Home (Police V) Department of the first respondent/ the
Principal Secretary to Government, Home (Police V) Department, the
Secretariat, Chennai - 600 009, by which the mercy petition dated
25.07.2011 given by the petitioner was rejected and by which the original
order dated 07.01.2004 in G.O.(2D) 11 (Police V) Department was
confirmed. By the said Original Order, the petitioner was imposed with a
punishment of stoppage of increment for a period of 3 years with cumulative
effect. The petitioner seeks grant of continuity of service with all attendant
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benefits.
2. The petitioner was working as Head Constable Grade-I Police
at the time when he filed the Writ Petition. He was previously Constable at
CBCID Wind in Chennai. In October 1997, the petitioner had been posted
as "waiting duty for S.P. CBCID. On 09.10.1997, the DSP, CBCID
Counterfeit Preventive Wing and a team went to nab culprits involved in
counterfeit currency.
3. It is the claim of the petitioner that he stayed at CBCID Office.
On 10.10.1997 in the early morning, the DSP, CBCID called the petitioner
to accompany the team of Kundrathur. The petitioner went to Kundrathur
Police Station. He was not aware of any details about the raid. On
10.10.1997, the Inspector of Kundrathur Police Station with the CBCID
team caught hold of a few persons and brought him to Kundrathur Police
station. Thereafter, they were brought to CBCID office and the petitioner
also came back with the team. One of the accused was Sukumaran, who
was a dismissed Constable.
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4. The petitioner claims that after coming back to the CBCID
Office, he went to perform his regular work as "waiting” staff of S.P. He
claims that he was not aware of any subsequent event.
5. The subsequent event was that on 11.10.1997 at around 03.30
a.m., the said accused Sukumaran stated that he had breathing problems
and he was taken to a hospital and it was advised that he should be shifted
to Apollo Hospital but on the way, he died.
6. The petitioner claims that the postmortem report returned a
finding that he died due to respiratory problem. It is stated that along with
the DSP, two Inspectors, for other Grade-II Constables and the petitioner all
faced disciplinary proceedings. The Enquiry Officer awarded postponement
of increment for a period of one year with two cumulative effects for DSP.
For the two Inspectors, who had by then retired from service, the recovery of
Rs.500/- and Rs.300/- from their pension for a period of three years and two
years respectively was imposed. For all the Constables including the
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petitioner, the punishment imposed was postponement of increment for a
period of three years with cumulative effect.
7. The petitioner claims that the accused Sukumaran died when he
tried to escape while being arrest at around 09.30 to 10.00 a.m., on
10.10.1997. It is also the contention of the learned Senior Counsel for the
petitioner that evidence revealed that the accused tried to run when he was
to be arrested and when the police party, which did not include the
petitioner, tried to catch him, he fell down. It is stated that most of the
injuries were sustained consequent to such falling down by the accused.
However, all the Constables including the petitioner were inflicted with
punishments which were far more serious than that imposed on either the
DSP or on the two Inspector of Police. This punishment was subsequently
questioned by the petitioner by filing an Appeal and also by filing a Review
but his efforts to reduce the punishment failed and the Appeal and Review
were rejected. Therefore, the petitioner had filed the present Writ Petition.
8. The main contention of the learned Senior Counsel on behalf of
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the petitioner was that the petitioner was only a waiting party and remained
at the CBCID Office and remained at Kundrathur Police Station and did not
accompany the team which actually went to arrest the said accused
Sukumaran. He was always waiting at Kundrathur Police Station and later
came back to the CBCID Office and later went over to perform his duty as
“waiting” staff for the S.P. The learned Senior Counsel stated that therefore,
by no stretch of imagination, could a finding be given that, even if the
accused is said to have died owing to force used by the police, the petitioner
was party to such infliction of force. He was never present when the accused
was arrested. He was never present when such force was used at the time of
arrest. He was not present when the accused tried to run and fell down.
Thereafter, he had come back along with the team to the CBCID Office and
had moved over to the S.P. Office to do his job as “waiting” staff. It is
therefore contended by the learned Senior Counsel that there is no finding at
all that the petitioner was either directly or indirectly involved in the
incidents which led to the death of the accused Sukumaran.
9. The second aspect which is pointed out by the learned Senior
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Counsel is about the parity in punishment. It is the contention of the learned
Senior Counsel that the DSP, who was the Investigating Officer and head of
the Team was awarded with a punishment of postponement of increment of
one year with cumulative effect and the two Inspectors, who were seniors in
rank to that of the petitioner, were imposed with punishment of deduction of
Rs.500/- and Rs.300/- respectively from their pension for a period of three
years and two years and those who went with the party to actually arrest the
accused and also the petitioner and also another Constable, Thangaraj were
all inflicted with punishment of postponement of increment for a period of
three years with cumulative effect.
10. The learned Senior Counsel pointed out the discrimination in
the punishment and stated that the petitioner herein, who had not been
involved either in the arrest or in the taking of custody of the accused
Sukumaran could not and should not have been equated with the roll played
by the other Police Personnel and therefore, his case should have been
viewed differently and the said punishment should not have been inflicted
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even at par with the other Constables/Head Constable. It was also
contended that the DSP and the two Inspectors were given comparatively
and extremely minor punishments.
11. The learned Senior Counsel further pointed out the postmortem
report by Dr. Santhakumar and pointed out the opinion of Doctor, who
stated that the injuries sustained could have been caused 12 to 24 hours
prior to the time of death. The accused Sukumaran died early in the morning
on 11.10.1997 and if that period is taken into consideration, the injury could
have been sustained only around 09.30 to 10.00 a.m., on 10.10.1997 which
was the time which he was apprehended and when minimum force was used
since he resisted arrest and tried to escape from the police party and fell
down. It is therefore contended that the petitioner, who was only waiting at
Kundrathur Police Station and subsequently, came back to CBCID Office
and went over to perform his job as “waiting” staff for S.P., could never have
been involved, if at all it is said that the accused died of police beating.
12. The learned Senior Counsel also pointed out the opinion of the
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Doctor that the injuries could have occurred by falling down and also
pointed out that therefore, the assertion by the respondents that the injuries
were caused owing to force being used should not be accepted by this
Court. The learned Senior Counsel therefore stated that the punishment
imposed on the petitioner requires interference by this Court.
13. The learned Special Government Pleader on the other hand
justified the order of punishment and the nature of punishment imposed. It
is the contention of the learned Special Government Pleader that the fact that
the accused Sukumaran died owing to beating by the police had been
established and in this connection, the learned Special Government Pleader
also relied on the postmortem report which had listed out a series of injuries
including contusion injuries and cut injuries. Even if it is to be stated that
cut injuries were sustained owing to fall down on rough surface, the
contusion could have been injuries caused according to the learned Special
Government Pleader, only due to beating by a blunt object. The opinion of
the postmortem Doctor was that those injuries were grave in nature and
ultimately, those are the reasons for the death of the accused.
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14. The learned Special Government Pleader also pointed out that
the role of the petitioner had been established during the enquiry and
therefore contended that the other Constables were also given the same
punishment, and urged that this Court should not interfere with the quantum
of punishment. It is therefore insisted that the Writ Petition should be
dismissed.
15. I have carefully considered the arguments advanced.
16. The following facts are neither disputed nor denied:-
(i) The petitioner was working as Constable in the Office of CBCID,
counterfeit Wing;
(ii) He was also placed as “waiting” staff in the Office of S.P.;
(iii) On 09.10.1997 he was in the office of CBCID Counterfeit wing;
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(iv) In the early morning of 10.10.1997 he had accompanied the
DSP, CBCID to Kundrathur and went to Kundrathur Police Station;
(v) He remained at Kundrathur Police Station;
(vi) The other team led by DSP and Inspectors had gone over to
arrest a few accused including one Sukumaran;
(vii) They brought back the said Sukumaran to the police station;
(viii) The petitioner accompanied the team back to the Office of
CBCID; and
(ix) The petitioner then went to perform his work as waiting staff for
S.P.
17. These are outline facts.
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18. What has to be considered is the happenings, not only at the
time of arrest but also at the time when Sukumaran was brought back to the
Office of the CBCID.
19. Though the learned Senior Counsel for the petitioner had
placed reliance on the postmortem report, to a little extent let me also extract
the same from the enquiry report only with respect to the nature of injuries
suffered and the injuries which were the cause for death:-
“RFkhhpd; clypy; fhzg;gl;l 1.2.3
Mfpaitfs; rpuha;g;gf
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cs;sitfspd; kPJ cuha;tjhnyh
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Ma[j';fspdhy; jhf;fg;gLtjhnyh
Vw;gl;oUf;fyhk; vd;Wk; fhak; 3
rpuha;g;g[ fhak; ePzl
; xG';fhd
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WP No.37209 of 2016
mst[s;s brhubrhug;ghd nkw;gug;gf
[ ;
bfhz;l Ma[jj;jpdhy;
jhf;fg;gLtjhnyh my;yJ ,j;jifa
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Vw;gl tha;g;gz
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4.5.6.7.8.9 Mfpait fd;wpa fha';fs;
,it kHkHg;ghd gug;g[s;s
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Ma[jj;jpd; kPJ ntkhf nkhJtjhnyh
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10.11.12 jiy njhspd; cl;ghfj;jpy;
,Ue;j fd;wpa fha';fs; cl;Twha;tpd;
nghJ fhzg;gl;l fha';fs; vd;Wk;
,itfs; kuzk; Vw;gLj;Jk; fha';fs;
vd;Wk; ,e;j fha';fs; kGkGg;ghd
gug;gst[s;s jiufs; kPJ tpGe;jhy;
Vw;gl tha;g;gz
[ L
; gpuk;g[ fj;jp nghd;w
kGkGg;ghd Ma[j';fshy;
jhf;fg;gl;lhy; nky; ghfj;jpy; njhypy;
rpije;j fha';fs; Vw;gl;oUf;Fk; vd;W
nkw;go fha';fs; rkjs kGkGg;ghd
gug;gpd; kPJ tpGtjhnyh.
nkhJtjhnyh Vw;gl;oUf;f tha;g;gf
[ s;
mjpfk; vd;Wk; ,e;j fha';fs; RFkhh;
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,wg;gjw;F Kd; 12 ypUe;J 24
kzpf;Fs; Vw;gl;L ,Uf;fyhk; vd;W
Twpa[s;shh;/ ,j;jif fha';fs;
Vw;gl;lth; rpy kzp neu';fs; Kjy;
XhpU ehl;fs; tiu capUld;
,Uf;fyhk; vd;Wk; elf;fnth. ngrnth
tha;g;g[ vd;Wk; K:isapy; Vw;gLk;
,uj;jf; frpt[k; mjpfkhf mjpfkhf
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;
vd;Wk;. Raepidtpy;yhky; gy ehl;fs;
,Uf;ft[k; tha;g;g[ cz;L vd;W
Twpa[s;shh;/
20. The above extract clearly shows that there were several injuries
including cut injuries and contusion injuries found during the course of
postmortem. It had been very clearly stated that though there was a
possibility of those injuries being sustained when a person falls down, the
more probability is that they occurred when the person was beaten with
sharp objects and by a blunt instrument. It had been stated that these
injuries could have been sustained about 30 – 36 hours prior to the time of
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death. This is only an opinion. The fact is that the injuries have been
sustained. The fact is that those injuries also included contusion injuries. It
is also a fact that the petitioner was part of a larger team and whether he
actually accompanied at the time of arrest or not pales into insignificance
because Sukumaran was brought back to the CBCID Office.
21. Judicial Review would lie on the procedure adopted by the
Enquiry Officer. Arguments were not advanced about lack of opportunity
granted during the enquiry process. The main focus of the argument was the
overt act which could be attributed to the petitioner herein and to the
proportion of punishment compared with the punishment imposed on the
DSP and the Inspectors of Police.
22. That issue had actually been taken up in W.P.Nos. 26611 to
26613 and 26952 of 2007 [M.Vijayan and three others Vs. the Secretary
to Government, Home (Police II) Department, Chennai]. Those writ
petitions filed by the other Constables.
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23. The learned Senior Counsel stated that those writ petitions
should have been divided in to two categories, one filed by the first three
petitioners therein and the other by the fourth petitioners / A.Thangaraj. This
is because Thangaraj was also waiting in CBCID Office like the petitioner
herein. The argument advanced is that the petitioner, who was waiting in
the CBCID Office after the accused Sukumaran was brought back and had
not been involved in that arrest could not therefore be involved in the
causing of injuries. It is contended that Thangaraj also stood on the same
footing. He was also waiting in the Office of CBCID, after the accused
Sukumaran was brought back.
24. The learned Single Judge, who heard those four writ petitions
together however refused to interfere with the quantum of punishment
imposed, namely, postponement of increment for three years with
cumulative effect. With respect to the proportionality of punishment, the
arguments on that ground advanced by the learned Senior Counsel in those
Writ Petitions were brushed aside in the following manner by the learned
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WP No.37209 of 2016
Single Judge:-
“23. Further the contention of the
learned Senior Counsel about the
proportionality of punishment is also not
tenable. The punishment imposed on the
petitioners is only a minor punishment.”
25. The one primary ground on which those writ petitions were
filed was on the issue of delay. That issue has not been addressed in the
present Writ Petition. The issue of delay had been however answered
against the writ petitioners therein.
26. As against that Judgment of the learned Single Judge, the
petitioners therein had filed W.A.Nos. 518 to 521 of 2012. Even though the
learned Senior Counsel in the present Writ Petition stated the case of
Thangaraj should have been examined separately, it is seen that he had
taken a conscious decision that his Writ Petition and his Writ Appeal were
heard along with the Writ Petitions and the Writ Appeals filed by the other
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WP No.37209 of 2016
Constables, he had also filed a Writ Appeal along with the other writ
petitioners. The Writ Appeals came up for consideration before a Division
Bench and by a Judgment dated 12.12.2017, the Writ Appeals had been
dismissed.
27. In the Writ Appeals, the main ground argued was about the
proportionality of punishment. The Division Bench had held as follows:-
“6. The punishment imposed on the
appellants was assailed by them on the ground that
the said punishment is too harsh and that there
was no uniformity in the imposition of punishment.
7. Admittedly, the team which arrested the
accused was led by the Inspectors of Police and
based on the enquiry report submitted by the P.A.
to the Collector, only the Deputy Superintendent of
Police and the Inspectors were suspended
immediately. Thereafter, based on the additional
statement made by the wife of the accused, the
appellants were implicated, though she had earlier
stated that her husband was not tortured by the
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police officials during the custody. But, according
to the appellants, the Inspectors were the authority,
under whose directions, they acted and therefore,
there being no vital role on their part, in the death
of the accused, they should have been given lesser
punishment than the one imposed on them and that
imposition of lesser punishment on the Inspector of
Police is arbitrary. 8. It is, therefore, necessary to
have a look at the punishment imposed on the
appellants and others. Accordingly, it is extracted
as under:
Sl.No. Name of the delinquent and PR Nature of punishment awarded
No.
1. Thiru N.Kuppusamy Stoppage of increment for one year
Superintendent of Police with cumulative effect - G.O.(2D)
PR No.7/99 No.499, Home (Pol.2) Department
dated 28.9.2004
2. Thiru E.A.K.Sivaraman Pension cut of Rs.500/- p.m. for 3
Deputy Superintendent of years
Police
formerly Inspector
PR No.8/99
3. Thiru S.Packiyaraj Inspector of Orders not yet issued
Police
PR No.9/99
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Sl.No. Name of the delinquent and PR Nature of punishment awarded
No.
4. Thiru K.Sasikumar
Police Constable 11326
5. Thiru A.Thangaraj, Grade I
Police Constable 2045
PR No.10 to 15/99. Stoppage of
6. Thiru S.Mathaiyan increment for 3 years with
Grade I Police Constable 6509 cumulative effect vide G.O.(2D)
7. Thiru D.Mohan No.6 to 11, Home (Pol. 2)
Temporary SI, formerly HC Department, dated 07.01.2004
2083 9.
8. Thiru E.Sivaji
Grade I Police Constable 10110
9. Thiru M.Vijayan
Head Constable 12232
9. A perusal of the above and also the
enquiry report, it appears that the appellants
and others have been found guilty. However,
only after taking note of their involvement,
different punishments had been imposed on the
appellants and others. Though the appellants
contend that they acted only on the direction of
the Inspector and therefore, the punishment
imposed on them has to be modified by imposing
lesser punishment like that of the one imposed
on the Inspector, we are of the considered view
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that such imposition of punishment by the
disciplinary authority, having regard to the
nature of the overt act and also the post mortem
report, does not inspire the confidence of this
Court to propose any other lesser punishment.
10. In view of the above, these appeals
are dismissed. However, there shall be no order
as to costs. ”
28. The learned Senior Counsel, placing reliance on the Judgment
of the Division Bench had stated that the Division Bench stated that they
had taken a considered view about the imposition of punishment by the
disciplinary authority, having regard to the nature of the overt act and also
the postmortem report and thereafter stated that those aspects did not
inspiring confidence on the Court to impose lesser punishment so far as the
appellants were cocnerned. This aspect is relied on by the learned Senior
Counsel by stating that therefore, the overt act of the petitioner should be
independently examined by this Court. The overt act of the petitioner herein
is similar to that of Thangaraj / Constable.
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29. The case of Thangaraj was also examined by the Division
Bench. Even if the Division Bench had passed one common order in the four
Writ Appeals, it has to be held that each one of the writ appeals had been
independently considered and thereafter, a common order was passed.
Merely because one common order was passed would not mean that the
cases were not examined independently. It would not lie in the mouth of the
writ petitioner to contend so. The aspect of overt act had been examined and
the Division Bench had very clearly stated that the report of the postmortem
and the overt act do not inspire confidence of the Division Bench to impose
any lesser punishment. This is a very categorical finding given by the
Division Bench. They had examined the overt act and they had done
independently examined each one of the Writ Appeals. It has to be stated
that they had applied the mind with respect to the arguments advanced on all
aspects.
30. The Division Bench had held that “only after taking note of the
involvement, the different punishments have been imposed on the
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appellants and others”. Therefore, the Division Bench had consciously
retained the punishment imposed.
31. In view of the observations which directly applies to the
petitioner herein, I am afraid, I cannot interfere with the punishment
imposed and therefore, the Writ Petition stands dismissed. No costs.
32. The learned Senior Counsel for the petitioner then stated that
even though the petitioner had suffered an order of punishment in the
departmental proceedings, it should be taken that the punishment related
back to the date of delinquency. To a little extent that contention is correct.
33. I would therefore, observe that if the petitioner is entitled for
promotion in the normal course and if he is otherwise eligible and if there
are no other remarks against him, then the petitioner may be considered for
promotion in accordance with the Rules governing grant for promotion. No
further observations are required. The Writ Petition stands dismissed. No
costs.
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vsg 27.07.2023
Index:Yes/No
Neutral Citation:Yes/No
To
1. The Principal Secretary to Government
Home (Police V) Department,
The Secretariat, Chennai - 600 009.
2. The Additional Commissioner of Police
Traffic Vapery, Chennai - 600 007.
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WP No.37209 of 2016
C.V.KARTHIKEYAN,J.
vsg
WP No.37209 of 2016
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WP No.37209 of 2016
27.07.2023
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